Fitzharris v. LeGgatt

• Decision Date: 28 June 1881
• Citation: 10 Mo.App. 527
• Parties: M. FITZHARRIS, Appellant, v. A. LEGGATT ET AL., Respondents.
• Court: Missouri Court of Appeals

10 Mo.App. 527

M. FITZHARRIS, Appellant,

v.A. LEGGATT ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 28, 1881.

A bill of exchange drawn at St. Louis “with exchange on New York” is not negotiable.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

PATRICK & FRANK and A. B. CASTLEMAN, for the appellant: The bill sued on is a negotiable instrument, notwithstanding the provision contained in it for payment “with exchange on New York or St. Louis.”--Dan. Neg. Inst., sect. 54; Smith v. Kendall, 9 Mich. 241; Johnson v. Frisbee, 15 Mich. 286; Bullock v. Taylor, 39 Mich. 137; Myer v. Hust, 40 Mich. 517; Sperry v. Horr, 32 Iowa, 184; Leggett v. Jones, 10 Wis. 34; Grutacap v. Woulluise, 2 McLean, 581; Price v. Teal, 4 McLean, 201; Bradley v. Lill, 4 Biss. 473 (declining to follow Lowe v. Bliss, 24 Ill. 168); Pollard v. Berries, 3 Bos. & Pul. 335.

MYERS & ARNSTEIN, for the respondents: The instrument sued on, containing as it does the words “with exchange on New York or St. Louis,” is not for a sum certain, is therefore not a negotiable instrument, and the assignee thereof has no greater rights against the drawer than his assignor, who, it is admitted, could not have recovered against the drawers in this case.-- Bank v. Gay, 63 Mo. 35; Guelberth v. Watson, 8 Mo. 663; Farwell v. Kennett, 7 Mo. 595; Samstag v. Conley, 64 Mo. 476; Lowe v. Bliss, 24 Ill. 168; Read v. McNulty, 12 Rich. L. 445; Bank v. Newkirk, 2 Miles, 442; Farquahar v. Insurance Co., 18 Alb. L. J. 330; Jones v. Radatz, 11 Cent. L. J. 512; Johnson v. Speer, 23 Alb. L. J. 13; 84 Pa. St. 407; 1 Pars. on Notes & Bills, 227; Dan. Neg. Inst., sect. 163; Chouteau v. Allen, 70 Mo. 339.

BAKEWELL, J., delivered the opinion of the court, on a rehearing.

The bill of exchange in question in this case, was drawn at St. Louis “with exchange on St. Louis or New York.” We held that, because it wanted certainty as to the amount, it was not a negotiable instrument. On this point we granted a rehearing of the case. We are well satisfied that no case bearing directly upon the question can be found which has not now been cited to us by the industry of counsel. After a careful consideration of these cases, we do not find the weight of authority against the conclusion already announced, and we are satisfied that, on principle, that conclusion is correct. If the established rule is to be changed, and it is thought the interests of commerce demand this, we think that the change should be made by the Legislature, and not by the courts.

A text-writer of great respectability (Daniels, Neg. Inst., sect. 55) says, speaking of the certainty as to the amount to be paid requisite in negotiable paper: “If there be added to the amount, ‘with current exchange’ on another place, the commercial character of the paper is not impaired, as that is capable of definite ascertainment.” He cites in support of his statement, Smith v. Kendall, 9 Mich. 241; Leggett v. Jones, 10 Wis. 34; Grutacap v. Woulluise, 2 McLean, 581; Price v. Teal, 4 McLean, 201. He says that there are cases which hold that such an addition destroys the negotiable character of the paper, and cites Lowe v. Bliss, 24 Ill. 168; Read v. McNulty, 12 Rich. L. 445. To these may be added Bank v. Newkirk, 2 Miles, 442. So the matter seems to stand, as to authority. No English case has been found in which an instrument payable with exchange on another city has been held to be commercial paper.

Parsons says: “There should be entire certainty and precision as to the amount to be paid. The reason of this is especially obvious; for, if the note is to represent money effectually, there must be no chance of mistake as to the amount of money of which it thus takes the place and performs the office. On this point, therefore, the cases are quite stringent. The sum must be stated definitely; and must not be connected with any indefinite or uncertain sum, nor are we aware of any trustworthy cases in which the rule id certum est quod certum reddi potest is permitted to supply the want of express certainty on this point, as it seems to be in relation to some other of the certainties required in promissory notes. Thus, if the promise be to pay a certain sum, * * * the current rate of exchange to be added. * * * In none of these cases can the instrument be regarded as a valid promissory note, even for the specific sum which the maker promises to pay.” 1 Pars. on Notes & Bills, 37.

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