Nat'l Bank of the Metropolis v. Williams

• Citation: 46 Mo. 17
• Parties: NATIONAL BANK OF THE METROPOLIS, Appellant, v. FRANK E. WILLIAMS, Respondent.
• Decision Date: 31 March 1870
• Court: United States State Supreme Court of Missouri

46 Mo. 17

NATIONAL BANK OF THE METROPOLIS, Appellant,

v.FRANK E. WILLIAMS, Respondent.

Supreme Court of Missouri.

March Term, 1870.

Appeal from St. Louis Circuit Court.

Dryden, Lindley & Dryden, for appellant.

I. The four days required by the statute mean four judicial days. (Wash v. Randolph, 9 Mo. 142.) Sunday is not a judicial day. (Hale v. Owen, 2 Salk. 625; Rex v. Elkins, 4 Burr. 2130.) The common law on the subject is not changed by the statute (Wagn. Stat. 887-8, § 6).

II. The declarations of Hutchinson, by which the defendant sought to connect the draft sued on with the cotton speculations of Hutchinson and Williams, are mere hearsay, and incompetent evidence against the bank: first, because the cotton speculation was not within the scope of his agency or official duty; and second, the declarations did not occur at the time of, nor accompany the acquisition of, the draft by the bank, or by Hutchinson for the bank. (1 Greenl. Ev., § 113.)

III. The defendant rests his freedom from liability on the ground that he was but the agent of Hutchinson in drawing the bill sued on, and in the transactions out of which the bill grew, and that this was known to the bank at the time the bill came to its possession. The facts relied upon, if true, do not acquit the defendant of liability. An agent is personally liable in all cases where he makes the contract in his own name, or voluntarily incurs a personal responsibility express or implied, whether he is known to be an agent or not. (Sto. on Agency, § 269; Mayhew et al. v. Prince, 11 Mass. 54; Stackpole v. Arnold, id. 27;Laforce v. Floyd, 5 Taunt. 749; Goupy v. Hardon, 7 Taunt. 159; Eaton v. Bell, 5 B. & A. 340.)

Garesche & Mead, for respondent.

I. Plaintiff's motion for a new trial not being made within four days, this court can not review the cause. (Wagn. Stat. 1059, § 6; Williams v. Circuit Court, 5 Mo. 254; Benoist v. Powell, 7 Mo. 224.)

II. Four days mean four judicial days but for the statute itself (Wagn. Stat. 887, § 6).

III. The transaction in this case was for the benefit of the bank, and its cashier's name was used as a cloak. The proof fully warrants this assertion.

IV. The declarations of Hutchinson were competent. (Merchants' Bank v. Berthold, 45 Mo. 527; 1 Greenl. Ev., §§ 113-14; Sto. on Agency, § 134.)

BLISS, Judge, delivered the opinion of the court.

Judgment was rendered in favor of the defendant on Saturday. The plaintiff presented his motion for a new trial and in arrest on the next Thursday, five days from the rendition of the judgment, instead of four, as seems to be required by the following provision of the statute: “All motions for new trials and in arrest of judgment shall be made within four days after the trial if the term shall so long continue; and if not, then before the end of the term.” (Wagn. Stat. 1059, § 6.) If the four days are intended to mean four judicial days, then the motions were made in season, because in that case Sunday must be excluded.

Our statute provides that in computing time, the last day, if Sunday, shall be excluded (Wagn. Stat. 888, § 6), and this was held to be the law before its passage. (See cases cited in 2 Hill, 377, note b.) The defendant claims that upon the maxim expressio unius, etc., all other Sundays must be counted. But this does not follow. The statute only undertook to provide in regard to the first and last days of a statutory period, saying nothing concerning other days. If, then, there is any established rule, we are left to its ruidance.

By the common law this question was well settled. In Hales v. Owen, 2 Salk. 625, the court expressly held Sunday not to be included in the four days in which to move in arrest of judgment, and that the defendant was entitled to four judicial days. In Rex v. Elkins, 4 Burr. 2130, Lord Mansfield applied the rule to criminal cases, and held that in computing the time in which a party might move in arrest, Sunday was not to be counted. The Supreme Court of Massachusetts, in Thayer v. Felt, 4 Pick. 354, in construing a statutory provision that a sheriff might adjourn a sale three days, excluded Sunday, and made no distinction between a long period and one wherein the time limited is less than a week. Counsel had held that Sunday is dies non juridicus only in regard to things which are to be transacted in court; but the court did not so confine it, but held that the sheriff might adjourn three secular days although an intervening Sunday might make it four days in all. The Supreme Court of New York, in Anon., 2 Hill, 375, held that the two days provided by statute for a certain proceeding in replevin meant two law days, and that Sunday should not be counted.

Defendant's counsel cite Womack v. McAhren, 9 Ind. 6, where the court held that service of process required to be made ten days before court was a good service, although the intervening Sundays were counted in making up the time; and they might have cited our universal practice in that respect, for it is never claimed that, under our statute, a service of fifteen days before term, excluding Sundays, is necessary in order to bring a party into court.

Without making the distinction of Thayer v. Felt between long and short terms, it is sufficient in this case to adopt the well-settled rule of the common law, that, as to matters to be transacted in court, Sunday is non dies, and should not be counted. In moving for a new trial, or in arrest, a party should be entitled to four working days after the trial if the term shall so long continue. The action was against the drawer of the following bill:

“$30,000.

WASHINGTON, D. C., May 14, 1866.

At sight pay to the order of J. B. Hutchinson, cashier, thirty thousand dollars, value received, and charge the same to account of

To J. W. SEAVER, Esq., Boston, Mass.

F. E. WILLIAMS.”

Hutchinson was plaintiff's cashier, and certain payments were indorsed on the bill. The defendant claimed that he, though the drawer, was not a party in interest to the bill, and that he was in no way indebted to the plaintiff, but that, in 1865, Hutchinson, who was plaintiff's cashier and general manager, employed him, with the knowledge of plaintiff, to go south to purchase and ship cotton; that Hutchinson advanced $50,000 out of the funds of the bank, and defendant, as a matter of favor, and without consideration, executed without date a draft of $50,000 upon a Boston firm, which was to be kept as a memorandum, and not to be presented until shipments of cotton had been made to meet it; that he went south, drew again for $10,000, shipped cotton to the drawee, who advanced to plaintiff $30,000, and the two drafts were surrendered upon defendant's giving the one sued on; that the last draft was made to Hutchinson, as plaintiff's agent, as a memorandum to enable plaintiff to receive the proceeds of other cotton to be shipped, which were afterward indorsed upon the draft. Defendant avers that all...