Burke v. Basting Utah Nat. Bank

• Decision Date: 18 February 1896
• Citation: 47 Neb. 247,66 N.W. 295
• Parties: BURKE ET AL. v. UTAH NAT. BANK.
• Court: Nebraska Supreme Court

47 Neb. 247

66 N.W. 295

BURKE ET AL.

v.UTAH NAT. BANK.

Supreme Court of Nebraska.

Feb. 18, 1896.

Syllabus by the Court.

1. To constitute an estoppel in pais, the person sought to be estopped must have conducted himself with the intention of influencing the conduct of another, or with reason to believe his conduct would influence the other's conduct, inconsistently with the evidence he proposes to give.

2. B. & F., live-stock commission merchants at South Omaha, wrote to the U. Bank a letter, saying, “We will pay H. & M.'s drafts, until further notice, for the cost or value of stock shipped to us here, with or without bill of lading attached.” Held, that B. & F. thereby obligated themselves to accept drafts made in pursuance of such letter of credit, provided they were in fact for the cost or value of stock then shipped; the bank, in discounting drafts, taking the risk of that fact; but the risk being transferred to B. & F. upon their acceptance of the drafts.

3. Under the letter of credit above quoted, a draft was drawn October 23d, and accepted October 29th. On October 29th, a large shipment of stock was made. November 8th, another draft was drawn, not covered by stock shipped, unless the shipment of October 29th should be applied thereto. There was no evidence that the bank, in receiving the last draft, relied on the acceptance of the former as not including the shipment of October 29th. Held that, under the circumstances, B. & F., in defense of an action based on their refusal to accept the last draft, were not estopped from showing that the earlier draft had been covered in part by the shipment of October 29th, the day of its acceptance.

4. An instruction, under such circumstances, to the effect that the bank had a right to rely, from the acceptance of the earlier draft, upon the fact that stock to cover it had been shipped prior to the date of its acceptance, and that B. & F. could not apply the shipment made on that day to its payment, was erroneous.

5. The estoppel contended for would not arise, beyond forbidding B. & F. to apply to the payment of the earlier draft shipments of stock of which they could not reasonably have known at the time of accepting such draft.

Error to district court, Douglas county; Hopewell, Judge.

Action by the Utah National Bank against George Burke and James A. Frazier, partners as George Burke & Frazier, on a draft. There was a judgment for plaintiff, and defendants bring error. Reversed.Hall & McCulloch and Schomp & Corson, for plaintiffs in error.

Isaac E. Congdon and J. R. Clarkson, for defendant in error.

IRVINE, C.

In 1888, one Hall and one Moore, partners under the name of Hall & Moore, and engaged, or intending to engage, in the business of purchasing live stock in the then territory of Utah, and shipping the same to market, opened negotiations with the Utah National Bank, with a view to transacting business with that institution. At Hall & Moore's request a letter was written to the South Omaha National Bank inquiring as to the standing of George Burke & Frazier, a firm engaged in the live-stock commission business at South Omaha, with which Hall & Moore contemplated transacting their business. This letter was referred by the South Omaha National Bank to George Burke & Frazier; and in response thereto, a letter, dated August 4, 1888, was addressed to the Utah National Bank by George Burke & Frazier. The letter began as follows: “The cashier of South Omaha National Bank referred your letter to us today, in regard to paying Mess. Hall & Moore's drafts. In reply, would say we will pay Mess. Hall & Moore's drafts, till further notice, for the cost or value of stock shipped to us here, with or without bill of lading attached.” The remainder of the letter is not material to the decision of the case. This letter was received by the Utah National Bank August 8th, and on that day its cashier addressed to George Burke & Frazier the following: “Your favor 4th inst. has been received. We will advance Messrs. Hall & Moore such moneys as they may want to draw for on you, which is, from what I can from Mr. Hall, for the cost of the cattle here. I will cheerfully reply to any who may ask regards to your standing, etc. I have been in cattle myself, and will, as far as I can, look and see what kind and how many cattle Mr. Hall will ship next week.” On that day, the Utah Bank discounted a draft of Hall & Moore on George Burke & Frazier for $1,330, dated August 7th, and from that time until October 23d continued to receive from Hall & Moore drafts in various amounts on George Burke & Frazier, all of which were paid. In this way, something over $50,000 was drawn and paid. On October 23d, a draft was drawn for $9,000, which was accepted October 29th, and paid November 1st. November 8th, a draft was drawn for $16,000, which was in due course presented, and acceptance refused. There was thereafter paid thereon about $7,000; and this action was brought by the Utah Bank against George Burke & Frazier to recover the remainder, of about $9,000. There was a verdict and judgment for the plaintiff for $7,746.66, and the defendants prosecute error.

The assignments of error are quite numerous. We are practically precluded from an examination of those relating to instructions given by the court of its own motion, because in the motion for a new trial the assignment relating thereto is directly against all the instructions given, en masse. Many of them are manifestly free from error, and the others cannot, therefore, be considered. A similar obstacle presents itself to assignments of error relating to the refusal of instructions requested by the defendants. Complaint is, however, made of the giving of the twelfth and fourteenth instructions requested by the plaintiff; and as, in our opinion, they were both erroneous, the assignment of the two together in the motion for a new trial was sufficient. As the judgment must be reversed...