Buckner v. Jones

• Decision Date: 21 March 1876
• Citation: 1 Mo.App. 538
• Parties: ARCHIMEDES J. BUCKNER, Respondent, v. ISAAC E. JONES, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 538

ARCHIMEDES J. BUCKNER, Respondent,

v.ISAAC E. JONES, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 21, 1876.

1. One taking the check of a third party under circumstances that would lead a man of ordinary prudence to suspect that the holder had no right to pledge it, or to pay it out for his own indebtedness, is bound to inquiry; and if, under such circumstances, he advanced money to the holder upon the check, or applies the same to the liquidation of an existing indebtedness of the holder, he will be held to refund the proceeds of the check in his hands to the owner.

2. It is not error to refuse to instruct that the evidence as to any material fact, in order to a recovery, must preponderate in favor of plaintiff.

APPEAL from St. Louis Circuit Court.

Affirmed.

George P. Doan, for appellant, cited: 1 Pars. on Bills (ed. 1865), 258, 278; 2 Pars. on Bills, 42, 43, 44; Bayley on Bills (ed. 1836), 104, and note 12; Goodman v. Simonds, 20 Haw. 343; Tuntal v. Barandon, 8 Taun. 100, affirming Collins v. Martin, 1 Bos. & Pul. 648; Fox on Con., 122; 2 Saunders on Pl. (ed. 1837) 670, 672, 673; 1 Stephen's N. P. 332, side page 333; Bay v. Coddington, 5 Johns. Ch. 54; Morrison v. McCartney, 30 Mo. 183; Lester v. Guion, 8 Bush (Ky.), 357; Pacific Law Rep., March 5, 1872; Peacock v. Rhodes, Dougl. (Mich.) 611, 633; Cook v. Jadis, 5 B. & Ad. 909.

Matthew O'Reilly, for respondent.

BAKEWELL, J., delivered the opinion of the court.

Plaintiff sues for $295, which he says that defendant received for plaintiff, and to his use, on October 8, 1870.

Defendant, in his answer, says that at the last-named date he was a member of the firm of Jones & Sibley; that at that date one Bingham owed Jones & Sibley $220.73, and at that date borrowed from Jones & Sibley a sum of money, and, in consideration of said previous indebtedness and the money then loaned, did then and there indorse and deliver to Jones & Sibley a certified check for $601.73, drawn by plaintiff upon a bank in Philadelphia, payable to Bingham's order; that, at the time of the delivery of this check and afterwards, Jones & Sibley advanced to Bingham $35, and also paid $40 to a creditor of Bingham, at his request; that these sums amounting altogether to $295, Jones & Sibley, on October 13, 1870, paid the balance ($306) to said Bingham. Defendant denies that he owes plaintiff anything, and says that the money sued for herein is the $295 retained by Jones & Sibley, as stated, from the proceeds of the certified check.

Plaintiff replies that, at the time Jones & Sibley received the certified check, and before they advanced or paid any money to Bingham or on his account, as stated, they well knew that the check was received and held by Bingham as the agent of plaintiff, with instructions to use the same for the benefit of plaintiff.

There was evidence tending to show that Bingham was an impecunious man, of drinking habits; that he was a sort of real estate broker, so far as he had any business at all; that he had no regular office, but used a desk in the drug store of Jones & Sibley for such business as he occasionally transacted; that about October 8th, in the presence of Jones, he received from plaintiff, by mail, a certified check for $601.73 to pay some taxes, accompanied by a letter of instructions; that at that time he owed Jones & Sibley $220 for money borrowed, in part, and partly for money of theirs which he had converted to his own use without their permission; that they knew that he was not likely to have, or be intrusted with, large sums of money; that they had known him and his habits and impecunious condition for a year or two, at least, and regarded him as a person whose acquaintance, for these reasons, it was desirable to be rid of; that, on receiving this check, the banks refusing to cash it for him, he desired Jones to loan him $25, to which Jones replied that he would lend him nothing until he paid or secured what he owed already; that Bingham then handed to Jones the check, and afterwards, at Jones' request, indorsed it, and then received $25 from Jones; that afterwards Jones lent him $10 or $15 more, and paid a note of Bingham for $40, which Jones & Sibley had indorsed; that Jones & Sibley afterwards paid to Bingham $306, and retained the remainder of the sum represented by the check, $295, alleging that it was due to them by Bingham. There was also evidence that Bingham had an interest in the check of about $25, for services or commissions. There was a verdict and judgment for plaintiff for $312.42, and, a motion...