Ford v. Angelrodt

• Decision Date: 31 October 1865
• Citation: 37 Mo. 50
• Parties: LUTHER R. FORD, Appellant, v. ERNST ANGELRODT AND ROBERT BARTH, Respondents.
• Court: Missouri Supreme Court

37 Mo. 50

LUTHER R. FORD, Appellant,

v.ERNST ANGELRODT AND ROBERT BARTH, Respondents.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Louis Court of Common Pleas.

This was an action brought by plaintiff against defendants on a bill of exchange or draft for $387.47, drawn by one Charles W. Wernz on the defendants. The plaintiff in his petition alleged that on the 9th day of May, 1857, the defendants rendered to one Charles W. Wernz “an account stated,” whereby they acknowledge that they owed said Wernz the sum of $387.47; that Wernz on the 3d of September, 1857, and for value received, assigned and delivered to plaintiff said account, and then and there made his certain writing, paper, or draft, whereby he ordered the defendants to pay to the order of Elias Brevort, at sight, the sum of $387.47, the balance due as per their statement of January, 1857, thereby ordering the payment due on said account; that Wernz delivered the draft to Brevort to collect the same for plaintiff; that Brevort endorsed the draft to W. S. McKnight & Co. to collect the same for plaintiff; that in September, 1857, Wernz ordered Brevort to pay to plaintiff whatever he might collect from defendants; that Brevort agreed to do so; that the draft was presented to the defendants, and they accepted the same; that on 29th October, 1857, the draft was presented to defendants for payment; the payment was refused, and the draft protested in due form for non-payment; that afterwards in 1861 W. S. McKnight, the holder of the draft, endorsed it over to plaintiff; that he is the legal holder and owner thereof, and as such asks judgment for principal, interest, damages and costs, and also prays for general relief.

The answer of the defendants admitted that they had in their hands $387.47 belonging to Charles W. Wernz and subject to his order; asked proof of the assignment of the account, of the drawing and endorsements of the draft, and denied the acceptance by defendants of the draft sued on. The answer further alleges that in 1858 and in 1859, and before the commencement of this action, Wernz, the drawer of the draft, directed the defendants not to pay the money in their hands to plaintiff, or any other person, unless ordered by plaintiff.

To support the issues made by the pleadings, the plaintiff give in evidence an account between Angelrodt & Barth and C. W. Wernz, commencing in January, 1854, running to January, 1857, and dated May 9, 1857; the account showed a balance of $387.47 in favor of Wernz on that day.

The plaintiff proved by the defendant Barth that said account was rendered by Angelrodt & Barth to Wernz and sent to him at New Mexico; that the amount of said account was all they owed Wernz, and they still had that amount in their hands.

There was no evidence tending to show when the account was received by Wernz, nor was there any evidence given by plaintiff of an assignment, in writing or otherwise, of this account, or of the amount therein specified to be due, except as hereinafter stated.

The plaintiff also gave in evidence a paper without any date, nor directed to any person, but proved to have been signed by Angelrodt & Barth:--“The two receipts must be signed by Mr. Wernz with his full German names, viz., Carl Wilhelm Wernz, and not Charles W. Wernz, in presence of a civil officer who keeps a seal, and both certified by said officer. The best is a clerk of a court, as a notary public has to attach the certificate of the Governor to his own. If Mr. Wernz was near Santa Fe and could sign the two receipts before C. P. Clever, Esq., at that place, whose signature and seal are known to me, it would be best, and needs not the Governor's certificate. By receipt of these two documents, Mr. Wernz's draft will be promptly paid by Angelrodt & Barth at their office. Yours, &c., E. C. Angelrodt.”

There was no parol evidence whatever tending to show to whom this paper was directed, by whom delivered, when it was executed, or to what particular draft or transaction it referred.

The plaintiff also gave in evidence a draft in the following words:

Fort Buchanan, N. M., Sept. 3, 1857.

Gentlemen:--At sight, please pay Elias Brevort, or order, three hundred and eighty-seven ($387) 47100 dollars, due as per statement January, 1857.

$387.47.

CHARLES W. WERNZ.

Messrs. Angelrodt & Barth, St. Louis, Mo.

[Endorsed.] Pay to W. S. McKnight & Co.--Elias Brevort.

[and] Pay to Luther R. Ford, or order, without recourse to us. March 13, 1861.--Wm. S. McKnight & Co.

To this draft is attached a notarial protest in due form and dated October 29, 1857.

The plaintiff proved the handwriting of Wernz, the drawer, and of Brevort and McKnight, the endorsers, that the draft was sent by Brevort to McKnight for collection; that after the draft was protested it was delivered by McKnight to plaintiff. It appears from the face of this paper that the assignment of the draft to Ford was made more than three years after the protest.

The plaintiff also offered in evidence a paper in the following words:

Mr. E. Brevort:--Please deliver to L. R. Ford the money, draft, or check, that you may receive for or upon the papers forwarded to St. Louis by you for me. Fort Buchanan, N. M., Sept. 16, 1857.--C. W. Wernz.

Accepted--Elias Brevort.

And the plaintiff proved that the signatures of C. W. Wernz and Elias Brevort on said paper are genuine.

There was no evidence tending to show that any other paper than the draft was ever sent to St. Louis by Brevort, nor was there any evidence tending to show how the plaintiff obtained possession of the account rendered by Angelrodt & Barth to him.

The defendant offered evidence tending to show that, in 1859, Wernz repeatedly wrote to and directed the defendants not to pay any money to the plaintiff, but to await his further orders.

The plaintiff then asked four instructions, all of which were refused; and the court gave an instruction, that upon the evidence the plaintiff could not recover.

The plaintiff took a non-suit, filed his motion for a new trial, (which was overruled,) and perfected his appeal.

Mumford, for appellant.

I. The first question in this case is, was there a transfer of a particular or a specific fund to the plaintiff? In the case of Rochet v. Grandell, 15 Eng. L. & Eq., is the latest and ablest review of the law as to what will amount to a transfer of a particular fund. The law, as there stated, is, that “any agreement between a debtor and a creditor that the debt owing should be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable charge upon such fund; in other words, will operate as an equitable assignment of the debt or fund to which the order refers.”

It is certainly the fact that a general bill of exchange before acceptance will not operate as an assignment for the amount that it calls for, but it is as certainly true that an order or a bill for a specific fund will operate as an assignment of the fund. (Smith v. Sterrett, 24 Mo. 262.)

If there is any evidence of the slightest character to establish the case, the court cannot take the case from the jury. In this case it will be seen by the pleadings, the petition, and answer, that the plaintiff alleged an assignment of the account to him, and gave in evidence the account, the order on the defendants, and the order in writing to Brevort to pay to the plaintiff, which B. accepted. From this and other facts, the court had no right to take the case from the jury. the jury are the sole judges of the weight and sufficiency of the evidence, and the court cannot be judge to expound the law and jury to judge of the weight of evidence; then from the evidence in this case the plaintiff had the right to go to the jury on the case he made, and the court erred in refusing his instructions, and in giving the instruction that he could not recover. (Winston v. Wales, 13 Mo. 569; McGover v. Whitney, 1 Mo. 613; Whitney v. State, 8 Mo. 165; Hulseman v. Citizen's Railw. Co., 34 Mo. 45.)

Courts of law will protect assignments. (R. C. 1855, § 8, p. 371, and cases there cited; 17 Johns. 97.) An order for the whole amount is an assignment. (Walker v. Mauro, 18 Mo. 564.)

Taussig & Kellogg, for respondents.

I. The plaintiff has failed entirely to prove that defendants accepted the draft sued on. The paper given in evidence is no evidence of the acceptance of the draft.

II. If the plaintiff has failed to prove an acceptance. it matters not whether the evidence discloses a state of facts upon which the...