Fisher v. Bagnell

• Citation: 186 S.W. 1097,194 Mo. App. 581
• Decision Date: 06 June 1916
• Docket Number: No. 14407.,14407.
• Parties: FISHER v. BAGNELL et al.
• Court: Court of Appeal of Missouri (US)

186 S.W. 1097

194 Mo. App. 581

FISHER v. BAGNELL et al.

No. 14407.

St. Louis Court of Appeals. Missouri.

June 6, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

"To be officially published."

Action by Miss J. C. Fisher against Thomas H. Bagnell and another, administrators. From a judgment for plaintiff, defendants appeal. Affirmed.

Byron F. Babbitt, of St. Louis, for appellants. Frank H. Haskins, of St. Louis, for respondent.

ALLEN, J.

This is an action to enforce a claim against the estate of William F. Bagnell in favor of this respondent, founded upon a check issued to respondent by decedent shortly prior to the latter's death. The probate court allowed the claim against the estate, and on the appeal of the executors to the circuit court, where the cause was tried by the court without a jury, the claimant again prevailed, and the executors have appealed to this court. The cause was tried in the circuit court on an agreed statement of facts which (omitting some statements relative to the presentation and allowance of the claim in the probate court and the appeal therefrom) is as follows:

"That on August 3, 1912, said William F. Bagnell in his lifetime executed and delivered to Jeanette C. Fisher, the plaintiff herein, the following check, to wit:

                "`No. 2066.        St. Louis, August 3, 1912
                

"`The Mechanics-American National Bank of St. Louis: Pay to the order of Miss J. C. Fisher $500.00, five hundred dollars.

                                    "`William F. Bagnell.'
                

"That said check was drawn by said William F. Bagnell against his general account or deposit in said bank for but a part thereof, and not against any special fund.

"That said William F. Bagnell died on the 28th day of August, 1912. That thereafter these defendants were duly appointed administrators of said William F. Bagnell's estate, have since duly qualified, and are now acting as such. * * *

"That said check was never either accepted or paid by said bank prior to the death of said William F. Bagnell, and has not by it since been paid, and that plaintiff did not present said check to said bank for payment until after said William F. Bagnell's decease. That said check was presented to Mechanics-American National Bank for payment by plaintiff within three or four days after the death of William F. Bagnell and payment was refused by the bank. That within three or four days thereafter defendants were notified by plaintiff of the refusal of the bank to pay said check and demand for payment was made by plaintiff of defendants, which demand was refused by defendants, and said check or the amount thereof has never been paid.

"That defendants suffered no loss by the delay of plaintiff in presenting said check for payment."

Plaintiff also offered the check in evidence, and it was admitted over defendants' objections.

It is argued for appellant that the check "was but an order on the bank to pay to plaintiff the sum of money therein called for on demand, and was revocable by the drawer at any time prior to his death and before it had been presented to the bank for payment," and that the death of the drawer, occurring before presentation of the check to the bank, "revoked the latter's authority to pay it, and plaintiff thereafter must have established as the basis of any claim against decedent's estate the original consideration, if any, for which said check was given," and that the check was not admissible in evidence as tending to establish the claim.

The instrument here in question is governed by the provisions of our Negotiable Instruments Law which was in force at the date of the execution thereof, and by the terms of the act a check is defined to be "a bill of exchange drawn on a bank payable on demand." And, except as otherwise provided in the act, the provisions thereof applicable to a bill of exchange payable on demand apply to a check. Section 10155, Rev. Stat. 1909.

Prior to the enactment of the Negotiable Instruments Law it was well settled in this jurisdiction that a check did not operate as an assignment pro tanto of the funds of the drawer in bank. And the statute now provides that a check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank. Section 10159, Rev. Stat. 1909. And both under the common law and under the statute the death of the drawer, with notice thereof to the bank, operates to revoke the authority of the latter to pay the check. Respecting this phase of the case many authorities are cited by appellant's learned counsel, but they are not decisive of the question here involved. This action proceeds against the estate of the decedent and is founded upon his liability upon the instrument as drawer thereof. A check is a negotiable instrument — an inland bill of exchange. (Sections 9972, 10155, Rev. Stat. 1909), and imports a consideration (section 9995, Rev. Stat. 1909). See Nelson v. Diffenderffer, 178 Mo. App. loc. cit. 51, 163 S. W. 271. The burden was upon the...