Cairo Nat. Bank of Cairo, Ill. v. Blanton Co.

• Decision Date: 21 September 1926
• Docket Number: No. 19420.,19420.
• Citation: 287 S.W. 839
• Parties: CAIRO NAT. BANK OF CAIRO, ILL. v. BLANTON CO.
• Court: Missouri Court of Appeals

287 S.W. 839

CAIRO NAT. BANK OF CAIRO, ILL. v. BLANTON CO.

No. 19420.

St. Louis Court of Appeals. Missouri.

September 21, 1926.

Rehearing Denied November 17, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by the Cairo National Bank, of Cairo, against the Blanton Company and another. Judgment for plaintiff against the named defendant, and it appeals. Affirmed.

John E. Turner and Elliott W. Major, both of St. Louis, for appellant.

Bryan, Williams & Cave, of St. Louis, for respondent.

BENNICK, C.

This action to recover the amount of a dishonored bill of exchange was instituted by plaintiff, a bank of Cairo, Ill., against the Liberty Central Trust Company, the payee, and the Blanton Company, the drawer, both of St. Louis, Mo. Plaintiff before trial, however, voluntarily dismissed as to the Liberty Central Trust Company. The case was tried to a jury, resulting in a verdict for plaintiff in the sum of $708.37, with interest amounting to $55.60, or for the total sum of $763.97. From the judgment rendered on said verdict, defendant the Blanton Company, after an unavailing motion for a new trial, has appealed.

The petition charged that defendant drew a bill of exchange on the Cairo Cotton Oil Mill, Inc., of Cairo, Ill., payable at sight to the order of the Liberty Central Trust Company, for value received, in the sum of $708.37; that thereupon the Liberty Central Trust Company indorsed and delivered said bill of exchange to plaintiff; that plaintiff thereafter presented same to the drawee, by whom payment was refused; that said bill of exchange was thereupon protested for nonpayment, and notice of such presentment, demand, and protest was given to defendant, and also to the Liberty Central Trust Company; that plaintiff was the owner and holder for value of said bill of exchange; and that no part thereof had been paid.

The answer alleged in substance that the only presentment of said bill of exchange made by plaintiff was over the telephone, that such presentment was illegal, and that thereby defendant was discharged. In the reply it was alleged that plaintiff presented said bill of exchange for payment within a reasonable time after same had been negotiated to it, and that on the same day on which presentment for payment was made, and payment refused by the drawee, it duly protested said bill of exchange for the nonpayment thereof, and that on said day due notice of said presentment, demand, and protest was given to the defendant.

The evidence disclosed that on September 19, 1923, a bill of exchange in the sum of $708.37 was drawn by defendant on the Cairo Cotton Oil Mill, Inc., of Cairo, Ill., payable to the order of the Liberty Central Trust Company of St. Louis. On the same day defendant deposited said bill of exchange at the Liberty Central Trust Company and thereupon received credit for the amount thereof. On September 20th the Liberty Central Trust Company indorsed said bill of exchange on the back thereof as follows: "For collection. Pay any bank or banker, previous indorsements guaranteed."

The bill of exchange was received by plaintiff in the regular course of mail on Friday morning, September 21st. When the draft was received, a clerk in plaintiff's collection department called the drawee over the telephone, under instructions from plaintiff's assistant cashier, and, having inquired if the draft would be paid, was informed that it would be taken care of. The clerk then reported the result of his inquiry to the assistant cashier, who thereupon approved the draft for remittance. Plaintiff, accordingly, drew its bill of exchange on its correspondent, the First National Bank of St. Louis, to the order of the Liberty Central Trust Company for the face amount of the bill of exchange drawn by defendant, and sent it in the mail to the Liberty Central Trust Company. Plaintiff's bank was closed at noon on Friday, September 21st, by reason of the fact that the mayor of Cairo had declared the day a holiday. The bank was also closed at noon on Saturday, which was a half holiday. On Monday, September 24th, plaintiff, not having received a remittance from the drawee, called again over the telephone, and was informed by the drawee that it never had intended and did not intend to pay the draft. Thereupon plaintiff caused the bill of exchange to be presented by a notary at the office of the drawee. Payment was refused, and thereupon the bill of exchange was regularly protested for nonpayment, and notice thereof was sent by the notary by mail in the regular course to the Liberty Central Trust Company and to defendant.

Defendant assigns as error the action of the court in refusing its peremptory instruction in the nature of a demurrer to the evidence. It is defendant's contention that, in-as much as plaintiff had received the draft in question for collection, it was not the legal owner of the title thereto, but was merely the agent of the Liberty Central Trust Company for the purpose of making the collection; that the presentment for payment made by plaintiff to the drawee over the telephone on Friday, September 21st, was not sufficient in law; that such presentment and demand for payment discharged defendant; and that plaintiff, having elected to present the draft in such manner, and having in response to directions from the drawee (as it understood them) paid the sight draft for the drawee to the Liberty Central Trust Company, could not, three days afterwards, present the bill again and protest it, and thus relieve itself of liability and the consequences of its own negligence, or reinstate the liability of the defendant, which had already been discharged. Plaintiff, on the other hand, argues that, even though the draft was originally forwarded for collection, yet, when plaintiff paid out value on the bill, it became either the purchaser of the bill or entitled to a lien, thereon for the amount advanced by it, and in either event became a holder for value; that presentment, demand and protest were legally made and within a reasonable time; and that, consequently, defendant was liable to plaintiff as a holder for value for the amount thereof.

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