Farmers' Bank of Dearborn v. Fudge

• Decision Date: 07 November 1904
• Citation: 82 S.W. 1112,109 Mo.App. 186
• Parties: THE FARMERS' BANK OF DEARBORN, Respondent, v. ABOUDAH J. FUDGE, Appellant
• Court: Kansas Court of Appeals

82 S.W. 1112

109 Mo.App. 186

THE FARMERS' BANK OF DEARBORN, Respondent, v. ABOUDAH J. FUDGE, Appellant

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

Cause affirmed.

Hamner Hamner & Calvin for appellant.

(1) Proof upon the trial that respondent was a partnership and not a corporation, is not proof of a material allegation of the petition, but in fact a disproof thereof. R. S. 1899 sec. 572; R. S. 1899, sec. 746. (2) Instruction 1, for plaintiff is erroneous, as it submits that if the bank put money to Franse's credit in the bank, and allowed him the privilege of checking upon it, then the respondent could not recover; and it does not submit the question whether or not he actually did draw it out or any part thereof, and entirely ignores the question of appellant requesting defendant to pay the draft, as alleged in the petition. (3) For the further reason it is not based upon any evidence, and not supported by the evidence, and does not submit the issues of the petition and is misleading and well calculated to mislead average jurymen, and it did not submit whether the draft had been presented and payment thereof refused. (4) For the reason it refers the jury to the pleadings before a recovery could be calculated, such as court informs them they might render. Commission Co. v. Hunter, 91 Mo.App. 333. (5) Instruction 1 is improper as being in direct conflict with instruction 2, given on behalf of the appellant. Stone v. Hunt, 94 Mo. 481.

Elijah Robinson and Harris Robinson for respondent.

(1) When an agent draws a bill on his principal, in the course of the business of the principal, the drawer and the drawee are to be treated as the same person, and, to bind the drawee acceptance of the bill is not necessary. McCormack v Hickey, 24 Mo.App. 363; Daniel on Neg. Inst., sec. 128, and cases cited. (3) It is now immaterial whether or not the plaintiff is a corporation. (a) It is alleged in the petition that plaintiff is a corporation, and this allegation is not denied under oath, and is therefore taken as confessed for all the purposes of this action. R. S. 1899, sec. 746; Bowring v. Railway, 90 Mo.App. 329; Faircloth v. Tinsley, 83 Mo.App. 588; Smith Co. v. Rembaugh, 21 Mo.App. 390. (b) By the express provisions of our statute, the defendant, by not raising the question as to defect of parties, waived the same. R. S. 1899, sec. 598; Iron Works v. Holmes, 62 Mo.App. 372; R. S. 1899, sec. 865; Bank v. Hughlett, 84 Mo.App. 274. (3) Plaintiff's instruction 1 is not subject to the objections urged against it by counsel for defendant. (4) Plaintiff's instruction 2 is not subject to the objection urged against it by counsel for defendant.

OPINION

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 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 drawn 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 first of January, 1902. On January 3, 1902, it cashed one such draft for $ 200, and on the sixth of said month another for the sum of $ 145.38, both which were protested, the defendant having refused to pay them. The evidence was somewhat conflicting as to proof of agency.

The first count of the petition is as follows:

"Plaintiff states to the court that at all the times hereinafter mentioned it was and still is a corporation organized under the laws of the State of Missouri, and doing a banking business at the city of Dearborn in said State; and one T. J. Means, Jr., was, at all times hereinafter mentioned and still is, cashier of said plaintiff bank; that the above-named defendant was, at all the times hereinafter mentioned, doing business at Kansas City, Missouri, and elsewhere, under the name of A. J. Fudge & Co., and that one R. L. Franse was at all the times hereinafter mentioned, the agent of said defendant, of which said fact plaintiff was informed by said defendant, and was, as such agent of said defendant and under his direction, engaged in the purchase of merchandise for said defendant.

"That on the third day of January, 1902, the said Franse, as the agent of said defendant and under his direction, drew his certain draft on said defendant (by the name of A. J. Fudge & Co.), whereby he directed said defendant to pay to said T. J. Means, Jr., as cashier of this plaintiff, on demand the sum of two hundred dollars ($ 200) for value received, which said draft was by said Franse on said third day of January, 1902, delivered to this plaintiff, and which draft is herewith filed.

"That on said third day of January, 1902, this plaintiff, at the request of said defendant, paid to said Franse said sum of $ 200 on said draft.

"That on the sixth day of January, 1902, said plaintiff presented said draft to said defendant and demanded payment thereof, but he then refused and still refuses to pay the same. . . ."

The second count of the petition on the other draft is practically the same in form. During the trial it developed that the Farmers' Bank of Dearborn was not a corporation but a partnership. At the close of plaintiff's case, defendant demurred to the evidence and the court's action in overruling the same is assigned as a ground for reversal. But this action of the court was not erroneous.

Section 598, Revised Statutes 1899, provides that defendant may demur to the petition when it appears upon its face there is a defect of parties plaintiff or defendant, and by section 602 it is provided that when the defect does not appear on the face of the petition, the objection may be taken by answer otherwise the objection shall be deemed to have been waived. This statute has been construed in many cases, among which are...