Livermore v. Blood

• Decision Date: 31 March 1867
• Citation: 40 Mo. 48
• Parties: ELIJAH LIVERMORE, Respondent, v. JAMES H. BLOOD AND GEORGE W. BLOOD, Appellants.
• Court: Missouri Supreme Court

40 Mo. 48

ELIJAH LIVERMORE, Respondent,

v.JAMES H. BLOOD AND GEORGE W. BLOOD, Appellants.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

The facts sufficiently appear in the opinion. The following instructions were asked by defendants and were refused by the court:

1. If the court, sitting as a jury, shall believe from the evidence that the witness Emery Livermore, at the time of the making of the notes sued on, was, and has since continued to be, the agent of the plaintiff in the transaction of his (plaintiff's) business in the city of St. Louis, and that said notes were made and delivered to the firm of Livermore, Sweet & Co.; that said Emery was a member of said firm; that said notes were to be held by said firm as collaterals to secure the payment of advances which might be made by them to Mowry; that said notes were sold by said Emery to the witness Thornburgh; that said Thornburgh retained the said notes in his possession and as his property until they became due; that notice of demand, refusal to pay, and protest of said notes, was waived; that sometime after they became due they were paid by said Emery, or, as the agent of plaintiff, Emery paid them with his (plaintiff's) money; that at the time he so paid them and delivered them to plaintiff he had full knowledge of the whole transaction with which said notes were connected, and the agreement between his firm and Mowry as to the use which was to be made of said notes; that at the time he so paid the said notes he knew there was an unsettled account between the said firm of Livermore, Sweet & Co. and said Mowry growing out of the same transaction with which said notes were connected, he was guilty of a fraud upon the defendants, and the plaintiff ought to be bound by the fraudulent act of his agent in that behalf.

2. And if the court shall further find from the evidence that there is a balance due from Livermore, Sweet & Co. to Mowry, the same ought to be allowed as a counter-claim against said notes.

3. The pleadings show that plaintiff took the notes sued on subject to the equities between the original parties.

4. If the court believe from the evidence that Emery Livermore procured said notes as plaintiff's agent, then whatever knowledge said Emery may have had of the circumstances under which said notes were given and held, and of the set-offs and defenses against the same of the maker, will be taken to be the knowledge of the plaintiff; and if said notes were delivered to said Emery as a member of Livermore, Sweet & Co. as collaterals to secure said firm in any advances made or to be made by them in the purchase of castor beans for Mowry, and if said Mowry delivered to said firm castor oil, the value of which constituted an off-set against the firm before said notes came into plaintiff's possession, then plaintiff can recover in this suit no more than whatever balance there may be against Mowry after deducting from the amount of advances made the value of the castor oil so delivered or sold to said firm; and if the evidence shows no such balance, then judgment should be given in favor of defendants Blood.

These instructions were all refused by the court, and judgment was given for the plaintiff.

Woerner & Kehr, for appellants.

Plaintiff admits in his reply that he received the notes after maturity. This, under a decision of this court in the case of Chappel v. Allen et al., 38 Mo. 213, was sufficient not only to put the plaintiff upon inquiry, but to subject the notes in his hands to all the equities and defenses against them.-- Bai. on Bills, 133; Sto. on Bills, § 220; Chit. on Bills, 125; Smith's Merc. L. 322. But the...