Eddy, Jameson & Co. v. Livingston, Kincaid & Co.

• Decision Date: 31 March 1865
• Citation: 35 Mo. 487
• Court: Missouri Supreme Court
• Parties: EDDY, JAMESON & CO., Respondents, v. LIVINGSTON, KINCAID & CO., Appellants.

35 Mo. 487

EDDY, JAMESON & CO., Respondents,

v.LIVINGSTON, KINCAID & CO., Appellants.

Supreme Court of Missouri.

March Term, 1865.

Appeal from St. Louis Circuit Court.

For statement of the facts, see opinion.

The court, at the request of the plaintiffs, gave the following instruction. (See opinion.)

To the giving of this instruction the defendants excepted.

The defendants asked the court to give the following instructions:

1. If the money in question was deposited with the defendants to be by them invested in a draft on the east, in order to be remitted to the plaintiffs, that the defendants, in so investing it, were to exercise their discretion as to the kind of draft they should purchase; that the defendants acted in the premises without compensation; that they invested the money, along with money of their own and of other persons, in a draft drawn by Joseph L. Heywood on the Secretary of the Treasury of the United States; that the defendants, in buying said draft, acted in good faith, for the purpose of remitting said money to the east for the plaintiffs in the same manner that they remitted their own, and had good reason to believe that said draft would be paid on presentation to the drawee; that the plaintiffs were, in the spring or summer of 1856, notified by defendants of the investment of said money in said draft, and did not, up to the institution of this suit in April, 1859, repudiate or object to the mode of remittance adopted by the defendants, then the plaintiffs are not entitled to recover.

2. If the defendants acted in good faith in investing the money in question, along with their own money and that of others, in the draft drawn by Joseph L. Heywood on the Secretary of the Treasury, the fact that the said draft was not made payable to plaintiffs, but was made payable to defendants, does not entitle the plaintiffs to recover, if the plaintiffs had notice of that fact, and did not, from the time of such notice up to the time of the institution of this suit, make any objection thereto; nor does the fact of such joint investment of moneys in said draft make the defendants liable therefor, if the plaintiffs had notice of such fact, and did not object thereto.

3. The defendants, in regard to the remittance of the money in question, were, in law, agents of the plaintiffs; and if the plaintiffs, after receiving notice of the mode of remittance adopted by the defendants, did not within a reasonable time repudiate or object to the same, they are to be considered as having ratified the act of the defendants, and are not entitled to recover.

The court refused to give any of these instructions, and the defendants excepted.

Krum & Harding, for respondents.

I. The Supreme Court will not try questions of fact, nor weigh the evidence by which they are solved. (Papin v. Allen, 23 Mo. 26.) There being evidence proving, or tending to prove, the facts hypothetically stated in the instruction given by the court below at the request of respondents, those facts will consequently be regarded as the facts in the case.

It appears, then, that the appellants were not mere naked depositaries, but that the deposit was connected with an undertaking or agreement to transmit the funds deposited to respondents at St. Louis, by purchasing therewith a safe or reliable draft or drafts; that, instead of doing so, appellants took the money, added other money of their own and that of other parties to it, and invested the whole sum in a large draft payable to themselves or their agents, without the consent of the respondents; also, that appellants held and kept control of said draft, and compounded and received part payment thereof in discharge of the whole, without the consent of the plaintiffs (respondents).

II. Upon the facts as stated, the court properly declared the law. Regarding appellants as bailees, the bailment was coupled with their undertaking to transmit the money to respondents, and to no one else; regarding them as agents, their instructions were to make such transmissal. In the one capacity they are liable for a violation of their undertaking, and in the other for disregarding their instructions. (Fellows v. Gordon, 8 B. Monroe, 15; Rutgers v. Luce, 2 Johns. Ca. 92.)

It appears from the testimony that the amount actually paid upon the draft was greater than the amount of respondents' deposit. Had appellants procured a draft in favor of respondents for the amount deposited by them, it might have been paid in full, or respondents might have sold the draft or compounded upon favorable terms; at all events, they were entitled to the control of their own affairs, and appellants were guilty of a misfeasance in placing the fund wholly out of the power or control of respondents. As to misfeasance by a mandatary, 4 Johns. 84 et seq.; Sto. Bail. § 171, b., &c., &c.

III. The court did not err in refusing instructions asked by appellants. The first two instructions refused assume the converse of the above propositions to be the law, and assume a fact not proved, viz: that respondents had notice of the method of remittance adopted by appellants. The third asserts that if they had such notice after the transaction was complete, and did not repudiate it in reasonable time, they have ratified appellants' acts.

BAY, Judge, delivered the opinion of the court.

Both plaintiffs and defendants were merchants; the former doing business in the city of St. Louis, and the latter in Salt Lake City, Territory of Utah. During the latter part of 1855, a clerk of the defendants, by the name of Voorhis, collected in Salt Lake City for the plaintiffs the sum of $1,500 in coin, and having no means of sending the same to St. Louis, and being unable to procure a bill of exchange, for the reason that there were no bankers or dealers in exchange at Salt Lake City, nor person from whom exchange could be bought in such sums as the purchaser might desire, deposited said money with said defendants for safe keeping, and with a view to their buying exchange with it and forwarding east...