Ensign v. Clark Brothers Cutlery Co.
| Citation | 193 S.W. 961,195 Mo.App. 584 |
| Parties | C. B. ENSIGN, Doing Business as C. B. ENSIGN & COMPANY, Respondent, v. CLARK BROTHERS CUTLERY COMPANY, Appellant |
| Decision Date | 05 March 1917 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
E. E Aleshire for appellant.
Fyke & Snider for respondent.
Plaintiff sued defendant as the acceptor, in writing, of a certain draft for $ 1500, payable on demand, dated April 22 1913, drawn by F. M. Pease in Chicago on defendant located at Kansas City, and transferred for value to plaintiff. The case was tried by the court, a jury being waived. The court made a finding of facts and rendered judgment for plaintiff for the full amount represented by the draft with interest. Defendant has appealed.
On April 22, 1913, the defendant at Kansas City sent the following telegram to F. M. Pease at Chicago:
Thereupon, Pease drew the following draft:
"$ 1500. Chicago, Apl. 22, 1913.
On demand pay to the order of F. M. Pease Fifteen Hundred Dollars, value received and charge the same to account of Clark Bros. Cutlery Co., 628 Broadway, Kansas City, Mo.
F. M. PEASE."
and, with the above telegram attached thereto, endorsed and delivered it to plaintiff and received from the latter the money thereon. Plaintiff, in due course and through the proper channels, sent the draft to defendant, but the latter declined to pay it, whereupon it was duly protested.
According to defendant's testimony, Pease, prior to April 22, 1913, had been employed and engaged in the endeavor to consolidate, and effect the purchase of, certain properties or factories at Watertown, Conn., though up to April 22, 1913, nothing definite had been accomplished in that direction. Defendant's further testimony was that on said date Pease told defendant over the long distance telephone from Chicago that he had received a telegram from Watertown, Conn., giving Clark Bros. Cutlery Co. an option on the purchase and consolidation of the factories and that it would require $ 1500 to pay for the option in addition to what Pease had put up or provided, and requested defendant to honor his draft for that amount; that the defendant agreed to do so if Pease would attach the Watertown, Conn., telegram to the draft so that defendant would be assured that Pease had some tangible agreement from the Watertown parties; that shortly after such telephone conversation, and on the same morning, Pease sent a telegram to defendant asking him to wire authority to draw as he perhaps could not get the draft cashed in Chicago without such authority; that thereupon defendant sent the above quoted telegram. Defendant contends that in the telegram agreeing to accept draft for $ 1500, the telegram therein referred to and required to be attached was the Watertown telegram and was so meant by defendant and understood by both it and Pease; that when the draft was presented and defendant saw that its telegram and not the Watertown telegram was attached, it refused to pay the draft.
Plaintiff's evidence was, and the court in its findings of fact so found, that the draft with the telegram attached was delivered to plaintiff on April 22, 1913, and the latter then became the owner thereof for value and has ever since been the owner thereof, and that at the time it was transferred to him, plaintiff had no notice nor knowledge of any arrangement between the drawer and drawee of said draft not expressed in said draft and attached telegram, nor of any other telegram having any relation to or bearing upon the subject, and that plaintiff did not take said draft possessed or charged with any such notice or knowledge.
According to Pease's testimony there was no agreement over the telephone with defendant that he should attach any telegram from Watertown to the draft. His testimony is to the effect that the agreement of defendant to accept his draft was an independent agreement between them and that he depended on the telegram he received from defendant, as did plaintiff. The finding of facts makes no explicit finding as to whether or not the defendant meant any other telegram than the one that it sent and which was attached to the draft. It makes no specific declaration on that feature, and makes no finding in regard thereto any more than what may be implied in the finding that plaintiff had no notice nor knowledge of any such arrangement or situation. For all practical purposes, however, it may be assumed that there may have been some such agreement between defendant and Pease and that the telegram meant, in the telegram agreeing to accept, was a telegram from Watertown; and the case will be disposed of on the theory that such may have been the case.
The questions, whether plaintiff became the owner, for value, of the draft, and whether he had or did not have notice of any arrangement between Pease and defendant as to any other telegram, or that any...
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