Crowell v. Plant
| Decision Date | 31 July 1873 |
| Citation | 53 Mo. 145 |
| Parties | ROBERT C. CROWELL, et al., Appellants, v. ALFRED PLANT, et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from the Jackson Circuit Court.
John K. Cravens for Appellants.
Where an order is drawn upon a party, and upon the face of the order it is payable out of an indebtedness of the drawee to the drawer, it is a bill of exchange, and any reference in the order to the source of the indebtedness, informing the drawer how he may re-imburse himself, does not change its character.
Twiss & Cook, for Respondents.
The order is in express terms drawn on and payable out of a particular fund. To enable the plaintiff to recover on such an order he must aver and prove that the fund was sufficient. (Edw. on Bills, 420; 1 Parsons on Notes, etc., 304; Owens vs. Lavine, 14 Ark., 389; Atkinson vs. Manks, 1 Cow., 691; McGee vs. Larramore, 50 Mo. 425.)
The plaintiffs sued the defendants as acceptors of the following instrument of writing:
“KANSAS CITY, MO., Oct. 28, 1869.
Messrs. Plant Bros., Pratt & Co.:
Thirty days after date, pay to the order of Messrs. Crowell & Co., two hundred (200) dollars, out of any money due me for roofing warehouse in West Kansas City, and you are hereby authorized to hold back that amount on my contract for doing said roofing, for the purpose of covering this order.
M. P. BURR.”
Across the face of which is written: “Accepted, Plant Bros., Pratt & Co.;” endorsed, “Protest waived, M. P. Burr.”
The petition counts on this writing as an absolute acceptance for the payment of two hundred dollars in thirty days after the date. The second amended answer of defendant admits the execution of the instrument, and the acceptance of it by the defendant, but denies that it was an absolute promise to pay the money, and sets up that it was conditional, as the face of it shows that it was to be paid out of a particular fund which never did accrue; and the answer charges that Burr abandoned the work and never performed the contract, and no money ever became due to him out of which the acceptance could be paid.
The plaintiffs moved to strike out this defense; but the Court overruled the motion, and the plaintiffs excepted. The plaintiffs then moved for a judgment on the pleadings, and the court overruled this motion; and, the case being called for trial, the plaintiff took a non-suit, with leave to move to...
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Mitchell v. Health Culture Co.
... ... Craig, 80 Mo. 367; Mooney ... v. Kennett, 19 Mo. 553; Dyer v. Krayer, 37 Mo ... 603; McGhee v. Larramore, 50 Mo. 425; Crowell v ... Plant, 53 Mo. 145; Pettis County v. Kingsbury, ... 17 Mo. 479, l. c. 484; Worden v. Dodge, 4 Denio, ... 159, 47 Am. Dec. 247; Tomlin ... ...
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Sparks v. Jasper County
...order been accepted in fact, yet the failure of Miller to perform the contract prevented the county court from paying the order. Crowell v. Plant, 53 Mo. 145. Sparks had the right to revoke the order at any time Miller should complete the bridges and the order should be paid in full by the ......
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Gwin v. Waggoner
...there was no liability on the contract until this fund had come into existence by being actually collected by the defendants. Crowell v. Plant, 53 Mo. 145; Daniel Negotiable Instruments, [4 Ed.] secs. 509, 517; Moody v. Cass County, 74 Mo. 307; Campbell v. Polk County Court, 76 Mo. 57; Dodg......
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Crane v. Williamson
... ... of this contention, we are referred to Gallery v ... Prindle, 14 Barb. 186, Ferguson v. Davis, 65 ... Mich. 677, 32 N.W. 892, Crowell v. Plont, 53 Mo ... 145, and a number of other cases, such as Newhall v ... Clark, 50 Am. Dec. 741, in which conditional orders were ... so ... ...