Greely v. McNabb

• Citation: 13 Mo. 596
• Parties: GREELY & GALE v. JOHN MCNABB.
• Decision Date: 31 October 1850
• Court: United States State Supreme Court of Missouri

13 Mo. 596

GREELY & GALE

v.JOHN MCNABB.

Supreme Court of Missouri.

October Term, 1850.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

This was an action of indebitatus assumpsit brought by appellee against the appellants to recover the money alleged to have been had received by the defendants below to the use of plaintiff. At the trial, the partnership of defendants was admitted. The plaintiff then read the deposition of John Easterly, who deposed, in effect, as follows: that deponent was agent of plaintiff; that as such agent he made a sale of goods to one Joseph Haven, taking for the amount of such sale, Haven's negotiable note, payable at six months after date to the order of S. Thorp, and indorsed by Thorp. At the time when said note became due, deponent was absent from St. Louis and had it in his possession; said note was therefore not duly presented for payment at its maturity and by such neglect the indorser was discharged. Deponent presented said note to Mr. Haven for payment, some ten or twelve days after its maturity. Haven said that his business had passed into the hands of Macy & Son of New York for settlement, that the defendants, Greely & Gale, were their agents, and that he, Haven, would have to see Greely before he could arrange it. Deponent called at defendants' store, found one of defendants there, and made known his business to said defendant. Defendant, Gale, said, “it is all right, the money is here ready for you.” He then said, “wait until Mr. Greely (the other defendant) comes in, and we will pay it to you.” Greely coming in said it is all right, the money was there. He then told deponent to go to Haven and get him to write “pay it” on the note, and then they, defendants, would pay deponent the money. Greely also said that the note ought to have been there when due and that deponent might have fallen into bad hands, but it was all right. Deponent then called at Haven's house. Haven refused to see him, but sent him word that he, Haven, could not do anything further about it. Deponent then returned to Greely & Gale's store, when Mr. Greely said that he, Greely, could not for his life see why Haven did not order the note paid, as there had been arrangements made in the sale to Macy & Son for the payment of the note. Greely then went to see Haven--Haven still refused to order the payment of the note. In accordance with the advice of defendants, deponent then left the note with defendants, who agreed to write to Macy & Son, and said that Macy & Son, would without doubt order the note paid. The book-keeper of defendants remarked to deponent, at the time, that he could not see why the note was not paid, as he had been to the brokers and the bank with the money to pay it. The plaintiff here rested.

Defendants called their book-keeper as a witness, who testified, in effect, that on the day when said note became due he endeavored to find it, but could not; that the note was not presented at maturity; that as book-keeper, he would necessarily have knowledge of any money left with defendants for any purpose; that he was directed to pay the note, but did not recollect particularly by whom; that Haven at the time the note fell due had failed and had transferred all his good to Macy & Son, of New York, and that defendants were agents, acting in that business for Macy & Son, received payments made for them and remitted the money; that at the time of the transfer from Haven to Macy & Son, some arrangements were made concerning the payment of this note, as witness was informed or had understood; that Haven had no money deposited with said defendants, to the knowledge of witness, but money had been received of him for Macy & Son, arising from sales or collections made by Haven for them; that the defendants after presentation of the note by Easterly, applied to Macy & Son for permission to pay said note, which they declined to give, and refused to direct its payment; that money, received for Macy & Son, was remitted from time to time, when there was any amount, say $300 or $400; how the account was when Easterly called, witness could not state; that the indorser on said note was an accomodation indorser, and had no interest in the original transaction; that Macy & Son, is a firm residing and doing business in the city of New York. Haven had been a merchant in St. Louis, were defendants reside and do business.

Defendants then asked the following instruction: 1. If the court sitting as a jury, find defendants had no interest in the note in question and were not liable for the payment of same, but had been directed to pay the same at maturity thereof, and that, at the time they were applied to by the witness, Easterly, the defendants had no funds of the maker in their hands, but supposed from prior directions they would be again directed to pay the note, and such direction was withdrawn, they are not liable for the payment thereof. 2. A promise, to charge the defendants for the note, must be in writing, unless it appears they undertook the payment upon some new and original consideration. 3. There is no priority between the plaintiff and defendants, and if they were mere agents of Marcy & Son, or were depositors of Haven, the defendants are not liable personally to the plaintiff, especially if both Haven and Macy & Son, refused to permit the application of any funds in hands of defendants to payment of the note. 4. The defendants as mere depositors or agents are not in any manner liable to the plaintiff to pay his debt, unless it appears they have made some engagement so to do. Of which instructions the 1st and 4th were given, and the 2nd and 3rd were refused.

The plaintiffs then asked the following instruction, all of which were given, to-wit: 1. If the court, sitting as a jury, believe from the evidence, that the plaintiff or his agent made a demand on the defendants for the payment of the note in question, after the maturity thereof, and that, at the time of such demand defendants had, in their possession, funds placed in their hands by Haven, which he had directed to be applied, and which defendants had agreed to apply to the payment of the note in question, the court should find for the plaintiff, unless it shall appear in evidence, that Havens had countermanded such application...