Cockrill v. Kirkpatrick

• Decision Date: 31 January 1846
• Citation: 9 Mo. 697
• Parties: COCKRILL v. KIRKPATRICK.
• Court: Missouri Supreme Court

9 Mo. 697

COCKRILL

v.KIRKPATRICK.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO RANDOLPH CIRCUIT COURT.

DAVID TODD, for Plaintiff. The plaintiff insists upon these points to reverse the judgment: 1. That evidence to prove witness' understanding of the legal effects of a contract, to be different from the substantial contents of an absent contract, is illegal and incompetent. 7 Mo. R. 515. 2. If the defendant has collected money for plaintiff, and a demand is made, and no payment, a recovery can be had, and for interest from refusal. 3. A demand may be inferred, and is not to be proven in express terms. 4. When money is tendered and not received, upon suit the plaintiff can recover the principal, and unless the money is in court upon the plea of tender, and there paid over, judgment must go for the plaintiff. 13 Wend. 390. 5. That if a note is payable in currency at a particular day, and is not paid on that day by the pay or, and it is his duty to seek the creditor for that purpose, he is not permitted subsequently to pay it in such currency without the consent of payee. 6. A plea of tender made of such currency after such day of payment, is not good.

JOHN B. CLARK, for Defendant. The defendant in error relies upon the following points and authorities to sustain the decision of the Circuit Court: 1. The defendant in this case was but the agent of the plaintiff in the collection of the money in the note, and had a right to collect the same in the kind of currency contracted to be taken by the plaintiff, although nothing was said in the note about the kind of money agreed to be paid and received in discharge; yet if there was an agreement to take currency, and the agent received the same kind of money agreed to be taken by the principal, he is bound to receive the same from the agent. Theobold on Agency, 356. 2. In this case the plaintiff has no right of action until he makes a demand of the agent to account. This principle has been decided by this court in the cases of Benton v. Craig, 2 Mo. R. 189; Burton v. Collin, 3 Mo. R. 315. 3. There being no special instructions to the agent in this case, and he having transacted the business of his principal in the usual manner observed in the country at that time, the principal was bound, and the agent absolved from any liability, although a loss ensued. Theobold on Agency, 356.

MCBRIDE, J.

Cockrill brought his action before a justice of the peace in Randolph county, against Kirkpatrick, for money collected by the defendant for the plaintiff, where the defendant obtained judgment; from which the plaintiff appealed to the Circuit Court, where the defendant again having judgment, the plaintiff sued out his writ of error and has brought his case to this court.

The following is the evidence as preserved by the bill of exceptions, to-wit: R. Denson testified that he was indebted to Noble on a note: that said note was assigned by Noble to the plaintiff: that above two years ago he paid the amount, $30 12 1/2, to the defendant, who had said note for collection; that he paid said note in Illinois bank paper, except 12 1/2 cents which he paid in specie: that it was paid in notes on the Springfield or Shawneetown Bank. His note to Noble was payable in the currency of this State: that it was his understanding that the note was to be paid in the common currency of the country, and that Springfield, Shawneetown, Indiana, &c., bank paper, was at that time the common currency of the country, but that there was more Illinois paper than any other kind.

N. Coates testified, that about January, 1842, he was doing business in Cockrill's store in Huntsville, when defendant came there and said to plaintiff, I have collected or have got your money from Denson; plaintiff said very well, or I am glad of it; that witness then went into another room, and in a few minutes after, on his return, heard plaintiff say to defendant, I will not pay any such price, or any such charges; that he understood this to be in relation to a charge which defendant made for collecting the money; that the parties separated; he did not see or hear defendant offer plaintiff any money, nor did he see defendant have any.

J. R. Abernathy testified, that Springfield bank paper sunk greatly below par, and ceased to circulate generally, in the month of February, 1842; that previous to that time the money in circulation was principally Illinois, Kentucky, &c.

Thereupon the plaintiff asked the court to instruct the jury as follows: 1. That if they believe from the evidence that the defendant collected $30 12 1/2 of the plaintiff's money, and that the plaintiff informed the defendant that he was ready to receive it, or demanded it, or done any act equivalent to a demand, they will find for the plaintiff, unless they also find that the defendant has since that time, and before the bringing of this suit, paid or tendered to the plaintiff the said money. 2. That it is not necessary that a demand should be proven positively, but the jury may infer a demand from the circumstances in the case. 3. That circumstances are sufficient to make out a demand. 4. That although the defendant is entitled to a reasonable compensation for collecting the plaintiff's money, yet it was his duty to pay all the money, over and above what would pay him such compensation, for his trouble, and labor, and time 5. That “currency of Missouri” only means such money as is issued or received by authority of the laws of Missouri or of the United States. 6. That it is not competent for a party to a written contract, or others, to prove that the contract was different from the terms thereof, unless fraud or mistake is proven. 7. That currency, or current bank paper, may mean such bank paper as is in general circulation, but currency of the United States, or of the State of Missouri, should be construed such currency as is authorized by the laws of the United States or of the State of Missouri. 8. That if the jury find for the plaintiff, they may find interest on the money from the time the same ought to have been paid. 9. That a tender of money is the actual production, and offer to pay the money, or a declaration made by the party to whom the money is to be paid, that he will not receive it. 10. That the offer of money in gross, or in a bag, does not make a tender; but it must be counted out, or the proper amount offered without demanding change, unless the party to whom the money was to be paid, declared that he would not receive it. 11. If a tender in bank bill is refused, and the bills are uncurrent, or under par at the time, the jury may infer from that fact that their uncurrency, or deficiency in value, was the cause of objection. 12. That a tender only bars the plaintiff from recovering costs, but he is entitled to recover the amount due. The 2nd, 4th, 6th, 9th, 10th, 11th, and 12th were given; the 1st, 5th, and 7th refused; whilst the 3rd and 8th appear not to have been acted upon by the court.

The defendant then asked the following instructions to the jury: 1. If the jury believe the contract was made for such money as was current at the time when the same was due, the defendant had a right to collect the same in currency. 2. If the jury believe there was a tender of the money due, before the institution of the suit, and that the plaintiff refused to receive it, they will find for the defendant. 3. That the plaintiff in this case cannot recover, unless he or his agent made a demand of the defendant for the money before the suit was brought. 4. That if the jury believe a demand was made, yet if they believe the money was collected in the kind of money agreed to be paid, and that the defendant offered the same, and that the plaintiff refused to receive it when demanded, and after the defendant had offered to pay, deducting a reasonable compensation for collecting the same, they will find for the defendant. 5. A tender in bank bills or notes, is a good tender, unless specially objected to on that account at the time. 6. A tender and refusal to receive may be inferred from circumstances. All of which were given by the court except the sixth, which appears not to have been acted upon.

The record the proceeds, “Denson was then again called before the jury, and in the main said, that he thought said note read ‘current money of...