Farmers' Bank of Dearborn v. Fudge

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBroaddus
PartiesFARMERS' BANK OF DEARBORN v. FUDGE.
Decision Date07 November 1904
82 S.W. 1112
109 Mo. App. 186
FARMERS' BANK OF DEARBORN
v.
FUDGE.
Kansas City Court of Appeals. Missouri.
November 7, 1904.

ACTION ON DRAFTS — EXTENT OF RECOVERY — INSTRUCTION — DEFECT OF PARTIES — HOW RAISED.

1. Where the petition alleged that plaintiff was a domestic corporation, and the proof showed a partnership, defendant was not entitled to demur to the evidence on the ground of defect of parties, Rev. St. 1899, §§ 598, 602, providing that a defendant may demur to the petition when there appears on its face that there is a defect of parties, otherwise the defect must be taken advantage of by answer.

2. An instruction which fails to submit to the jury a matter concerning which there is no controversy is not erroneous.

3. Where, in an action by a bank to recover on drafts drawn on defendant and paid by the bank, it was found that the drawer of the drafts to whom the bank paid the money was defendant's agent in issuing the drafts, it was immaterial whether defendant requested plaintiff to pay the drafts.

4. Where, in an action by a bank to recover on drafts drawn on defendant by a third person and paid by the bank to the third person, the petition alleged that the third person was defendant's agent and was so held out to the bank by defendant, an instruction authorizing a recovery if the third person was defendant's agent or was so held out by him is not in conflict with an instruction directing the jury to find for defendant if defendant did not agree to pay drafts drawn on him by the third person and the latter was not the agent of defendant.

5. An instruction, in an action to recover on drafts drawn on defendant, which states if the drawer "drew the drafts described in the petition," etc., is not objectionable as referring the jury to the petition for a description of the drafts, where the drafts were in evidence.

6. In an action by a bank to recover on drafts drawn on defendant and paid to the drawer by the bank, it appeared that a part of the money remained on deposit to the credit of the drawer, who was defendant's agent. Held, that the bank, having failed to credit such deposit on the drafts, could recover from defendant the full amount thereof.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by the Farmers' Bank of Dearborn against Aboudah J. Fudge. From a judgment for plaintiff, defendant appeals. Affirmed.

Hamner & Hamner, for appellant. Elijah Robinson and Harris Robinson, for respondent.

BROADDUS, J.


The plaintiff sues as a corporation under the laws of Missouri, doing a banking business in the county of Platt. The petition is in four counts, but at the trial plaintiff dismissed as to the third and fourth, and the cause was tried on the first and second, on which latter the finding and

82 S.W. 1113

judgment were for the plaintiff, and defendant appealed.

According to plaintiff's evidence, in April, 1900, one R. L. Franse appeared at plaintiff's bank at Dearborn and informed the cashier thereof that he wanted the bank to pay drafts which he might at different times draw on defendant to pay for poultry and produce to be shipped to defendant. Means, the cashier of the bank, thereupon called up defendant by telephone and asked him if he had a man at Dearborn to buy poultry and produce for him, and defendant answered that he had. Then Means asked the name of the man, and informed defendant that Franse wanted to draw drafts on him from time to time, and asked if he would pay the drafts, to which defendant replied that he would. Then Means asked defendant how much he should let Franse draw, to which he answered: "Oh, well, let him draw on me from time to time as he buys, and whatever he draws on me will be all right." The bank cashed drafts drawn on defendant by said Franse at different times up to about the 1st of January, 1902. On January 3, 1902, it cashed one such draft for $200, and on the 6th of said month...

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2 practice notes
  • Nichols v. R. J. & W. M. Boyd Const. Co., No. 11393.
    • United States
    • Court of Appeal of Missouri (US)
    • February 1, 1915
    ...will be deemed waived if not so taken. State of Missouri to Use, etc., v. Sappington, 68 Mo. 454; Farmers' Bank of Dearborn v. Fudge, 109 Mo. App. 186, 82 S. W. 1112; Benne v. Schnecko, 100 Mo. 257, 13 S. W. 82; State ex rel. v. True, 20 Mo. App. 176; Dodson v. Lomax, 113 Mo. 555, 21 S. W. ......
  • Iroquois Mfg. Co. v. Annan-Burg Milling Co.
    • United States
    • Missouri Court of Appeals
    • December 2, 1913
    ...no issue as to defect of parties raised by the answer. So the Kansas City Court of Appeals held in Farmers' Bank of Dearborn v. Fudge, 109 Mo. App. 186, 82 S. W. 1112, a case that on this point nearly parallel to that at Over and above this, there is no merit in this contention first here m......
2 cases
  • Nichols v. R. J. & W. M. Boyd Const. Co., No. 11393.
    • United States
    • Court of Appeal of Missouri (US)
    • February 1, 1915
    ...will be deemed waived if not so taken. State of Missouri to Use, etc., v. Sappington, 68 Mo. 454; Farmers' Bank of Dearborn v. Fudge, 109 Mo. App. 186, 82 S. W. 1112; Benne v. Schnecko, 100 Mo. 257, 13 S. W. 82; State ex rel. v. True, 20 Mo. App. 176; Dodson v. Lomax, 113 Mo. 555, 21 S. W. ......
  • Iroquois Mfg. Co. v. Annan-Burg Milling Co.
    • United States
    • Missouri Court of Appeals
    • December 2, 1913
    ...no issue as to defect of parties raised by the answer. So the Kansas City Court of Appeals held in Farmers' Bank of Dearborn v. Fudge, 109 Mo. App. 186, 82 S. W. 1112, a case that on this point nearly parallel to that at Over and above this, there is no merit in this contention first here m......

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