P. D. Gowling v. American Express Co.

• Decision Date: 09 November 1903
• Citation: 76 S.W. 712,102 Mo.App. 366
• Parties: P. D. GOWLING, Appellant, v. AMERICAN EXPRESS COMPANY et al., Respondents
• Court: Kansas Court of Appeals

76 S.W. 712

102 Mo.App. 366

P. D. GOWLING, Appellant, v. AMERICAN EXPRESS COMPANY et al., Respondents

Court of Appeals of Missouri, Kansas City

November 9, 1903

Appeal from Howard Circuit Court.--Hon. J. A. Hockaday, Judge.

Judgment reversed and cause remanded.

T Shackelford and J. H. Denny for appellant.

(1) The court tried the case upon an erroneous theory of the law, and submitted the case upon an instruction which erroneously declared the law to the jury. Bank v. Trust Co., 149 Ill. 543; Bank v. Bank, 151 Mo. 329; Ward v Smith, 74 U.S. 447; Bank v. Bank, 7 Bissell 193; 1 Daniel Neg. Inst. (4 Ed.), sec. 335; 2 Daniels Neg Inst. (4 Ed.), sec. 1625; Bank v. Ainsworth, 123 Pa. St. 212; Bank v. Bank, 11 N.Y. 203; Hall v. Storrs, 7 Wis. 253; Whitney v. Essen, 99 Mass. 308. (2) Defendants advertised and held themselves out to the world as collectors of commercial paper; the plaintiff delivered them the check to collect, and their indorsements on the check as well as their own admissions show that they received the check for collection, and the defendants can not shield themselves from the liability and duty which the law imposes in such circumstances, by issuing to the plaintiff a receipt for the collection with terms and conditions entirely foreign to the matter in hand. Having received the check for collection the defendants became subject to the duties and liabilities which the law imposes in such cases, and they can not limit their liability for negligence in the performance of the duties thus imposed. Ins. Co., v. Railroad, 74 Mo.App. 89; Ketcham v. Express Co., 52 Mo. 390; Conover v. Express Co., 40 Mo.App. 31; Nickey v. Railroad, 35 Mo.App. 86.

R. C. Clark and A. W. Walker for respondents.

(1) Under the allegations in plaintiff's petition, and his own evidence, the instruction given on behalf of defendants was entirely proper. The petition itself shows that plaintiff accepted the bank draft without objection and presented it for payment and the jury correctly found that both banks were solvent, that there were funds to meet the payment of the draft and that neither of the defendants had anything to do with countermanding its payment. In the case of Bank v. Bank, 151 Mo. 320, the facts were entirely different. (2) Even if the defendants as collecting agents had not been warranted in receiving a banker's draft for the check, the plaintiff by accepting said draft without objection, before it was countermanded, and presenting it for payment, ratified the act of his agents and made the draft his own. 2 Daniel on Negotiable Insts. (4 Ed.), sec. 1625; Rathbun v. Citizens' Steamboat Co., 76 N.Y. 376; Trustees of Schools v. McCormack, 41 Ill. 323; Coykendall v. Constable, 99 N.Y. 313. (3) The receipt taken by plaintiff from Wells, Fargo & Company for the check expressly limits the liability of defendants to that of a forwarder, and the plaintiff not only admitted that fact but himself introduced the receipt in evidence and therefore cannot deny its conditions. If the receipt was erroneous plaintiff should have first reformed it. Shea v. Seelig, 89 Mo.App. 146.

OPINION

SMITH, P. J.

This case may be stated after this fashion, to-wit: On the first day of April, 1902, the plaintiff, a resident of Beaumont, Texas, delivered to the defendant, Wells, Fargo & Company, at that place for collection and remittance, a check for $ 450, drawn by one S. M. Naylor on the Payne & Williams bank of Fayette, in this State. The defendant, an express company, who advertised and held itself out to the world as a collector of commercial paper, received the check for collection, giving a receipt therefor, and forwarded the same to the American Express Company, defendant at Fayette, with the following indorsement: "Pay to Am. Ex Co. for collection. A. J. Peterson, G. A. Fargo. X. K. C. Mo. Pr. P. P. S." L. W. Jacobs, the agent of the defendant American Express Company at Fayette, presented the check at the Payne & Williams bank for payment and it was honored, but instead of collecting the money on the check, he accepted and received in lieu thereof a draft for $ 450 drawn by said bank on the Importers and Traders National Bank of New York City, payable to himself, which he indorsed: "Pay to the order of P. D. Gowling, L. W. Jacobs, agent," and sent to the plaintiff by way of express in care of defendant Wells, Fargo & Company at Beaumont, Texas. The plaintiff deposited this draft to his credit in the American National Bank at Beaumont, but before the draft was collected by this bank payment was stopped by a telegram sent at the instance of Naylor, the drawer of the check, to the New York bank, upon which the draft was drawn, and the Beaumont bank thereupon charged the amount back to the plaintiff and return him the draft. The plaintiff immediately after the draft was returned to him tendered it to the defendant's agent, L. W. Jacobs, at Fayette, and demanded the sum of $ 450, and upon the refusal of payment began this suit, his petition containing two counts: One praying damages for $ 450 for alleged violation of contract by defendants in failing to collect and remit the amount of the collection; and the other a count for money had and received by defendants to the use of plaintiff.

The amended answer of the defendants contained a general denial, and then sets forth the receipt given by defendant Wells, Fargo & Company upon receipt of the check for collection which they allege to be the only agreement on the part of the defendants; the answer further set up that the check was obtained by fraud and in a gambling transaction to which the plaintiff was a party, and that the plaintiff paid nothing for the check; that the defendants collected said check and sent the plaintiff a draft therefor which he accepted as full payment and satisfaction of his check and that he was thereby debarred and estopped from maintaining this action.

The plaintiff filed a reply denying the new matter set up in the defendants' amended answer, alleging a previous tender of the draft back to the defendants, and their refusal to receive it and deposited the draft with the clerk of the court for the defendants.

The cause was tried to a jury, and at the conclusion of the evidence the plaintiff requested and the court refused the following instructions:

"2. The court instructs the jury that if they believe from the evidence that the defendant received of the plaintiff for collection the check mentioned in plaintiff's petition and introduced in evidence, and that defendants presented same for payment to Payne & Williams Bank and that the same was paid by said bank to L. W. Jacobs, agent of defendants, and that the said Jacobs instead of receiving and transmitting to plaintiff the money on same sent instead thereof a draft which was not paid when payment thereon was demanded by plaintiff, then the verdict must be for the plaintiff for the amount of said check.

"3. The court instructs the jury that if they find from the evidence that said Payne & Williams Bank was ready and willing to pay the money on said check of plaintiff at the time it was presented at said bank and that the money was there to meet same, then it was the duty of defendants to receive only money in return for said check and that if the defendants in lieu of the money on said check sent this plaintiff a draft drawn by said bank, and that said bank afterwards stopped payment on said draft, then the verdict must be for the plaintiff for the amount of said check delivered to defendants.

"4. The court instructs the jury that if the defendants received plaintiff's check for collection and surrendered the same to the Payne & Williams Bank in return for a draft drawn by said Payne & Williams Bank, then the defendants assumed the responsibility of said check proving good and being paid by the bank upon which it was drawn and if the same was not paid, but payment thereof refused by the bank upon which it was drawn, then the verdict must be for the plaintiff for the amount of the check."

The defendants requested and the court gave the following instruction:

"If the jury believe from the evidence that the defendant express companies transmitted the check in question to the Payne & Williams Bank at Fayette, Missouri, and collected the same and transmitted the proceeds to plaintiff without delay by draft of said bank on the Importers and Traders National Bank of New York, and that said banks were solvent at the time and that the failure to honor said draft was not for want of funds in said Payne & Williams Bank or said Importers and Traders National Bank for its payment, but that payment of the same was countermanded without any act on the part of the defendants or either of them, conducing to the same, then you will find for the defendants."

The principal ground upon which the plaintiff relies for a reversal of the judgment relates to the action of the court in the giving and refusal of instructions. The instruction for defendants which in effect told the jury that if defendants presented the Naylor check to the Payne & Williams Bank and received a draft therefor on the Importers and Traders Bank, and that on the presentation of it to the latter bank it was dishonored only because of a countermand by the former bank with which the defendants were in no way privy, then the verdict should be for defendants, was, we think, an incorrect expression of the law as applied to the facts of the case. In Morse on Banks and Banking (4 Ed.) sec. 247,...