Rivers v. House

• Decision Date: 14 November 1921
• Docket Number: 231
• Citation: 234 S.W. 641,150 Ark. 452
• Parties: RIVERS v. HOUSE
• Court: Arkansas Supreme Court

234 S.W. 641

150 Ark. 452

RIVERS v. HOUSE

No. 231

Supreme Court of Arkansas

November 14, 1921

Appeal from White Chancery Court; J. E. Martineau, Chancellor affirmed.

Decree affirmed.

John E Miller and C. E. Yingling, for appellant.

1. There was a consideration for the guaranty of appellee bank to the appellant in this: that he suffered detriment and expense on account of the telegram, and the bank retained the use of the money for more than ten days, and House obtained a direct benefit on account of the action of the bank, and the bank by its action in the matter hoped to make a customer of House. This comes within the rule establishing consideration in Elliott on Contract, vol. 1, p. 337, § 207, and vol 5, p. 9, § 3936.

The telegram constituted an unconditional promise to pay, and no notice or acceptance from appellant was required, but only his performance of the thing required, which was done. 111 Ark. 415; 71 Ark. 585; 105 Ark. 443; 144 Ark. 522; 187 S.W. 628; R. C. L. vol. 12 p. 1064, § 13.

Appellant should not be held to be estopped because he presented a claim on the cashier's check against the First National Bank, as the appellees are getting the direct benefit of the amounts so collected. This action brings appellant within the rule stated in 131 Ark. 82.

The act of the cashier in sending the telegram was not ultra vires, appellant having performed his part of the contract had the right to presume that the telegram was sent upon proper authority. 96 Ark. 602; 74 Ark. 377; 91 Ark. 367; 96 Ark. 308.

2. The finding made by the chancellor that appellee House was liable is one of fact and should be sustained under the ruling in the following cases: 144 Ark. 573; 138 Ark. 454; 138 Ark. 403; 135 Ark. 607; 132 Ark. 95.

The First National Bank was the agent of House and not of appellant, and House is liable to appellant by reason of the failure of the bank to pay over the money to him. 55 So. 47; 34 L. R. A. (N. S.) 734.

Brundidge & Neelly, for appellee.

1. It was Rivers' duty, made so by statute, to have satisfied the mortgage, and it cannot be said that any advantage passed to either the bank or House by not doing so.

The telegram was not an absolute guaranty, but only an offer of guaranty. What else could be the meaning of the word "answer" in the telegram? There was no consideration whatever for the alleged guaranty. A showing of "consideration" is necessary before the bank would be liable. 111 Ark. 223; 20 Cyc. p. 1397 and pp. 1413 and 1417; 93 N.Y. 273; 45 Am. Rep. 209; 127 Mo. 327; 4 Ark. 76; 93 F. 171; 104 N.E. 346; 104 U.S. 159; 12 R. C. L. 1067, 1076; 15 A. & E. Am. Cas. 1166.

Appellant should be estopped by reason of his having filed a claim with the receiver of the First National Bank, thereby recognizing that bank as his agent, and further preventing House or the F. & M. Bank from filing a claim.

The act of the cashier in sending the telegram was not binding on the bank. 138 Ark. 124; 260 Pa. 223.

2. The First National Bank was recognized by Rivers as his agent, when he filed his claim with the receiver, and he should now be barred from bringing suit against House. 124 Ark. 536, and cases cited.

OPINION

WOOD, J.

One H. H. Capps was the agent of W. W. Rivers to sell for him certain lands near Judsonia, Arkansas. Capps negotiated for a sale of the lands to W. L. House for a consideration of $ 3,600. Rivers executed a deed and sent same to Capps for delivery; but this deed was not satisfactory in form, and, at the suggestion of House, on March 29, 1920, Rivers mailed a second deed to House in care of the First National Bank at Judsonia. Rivers had received from House through the First National Bank the sum of $ 600 as part payment of the purchase money. Some time elapsed, and Rivers began to urge in letters to that bank the payment of the balance of the purchase money, or a return of his deed. A letter of May 12, 1920, advised the First National Bank to return the deed to Rivers unless its client would take up same and pay balance of purchase money in twenty-four hours. On May 15, 1920, the First National Bank wrote Rivers inclosing cashier's check for $ 2,996, balance due on purchase, and stating that House had been ill, and the payment thus delayed. Rivers received the above letter and cashier's check on May 17, 1920, and on the same day he received from the Farmers & Merchants Bank of Judsonia (hereafter called Farmers Bank) the following telegram: "This bank guarantees payment three thousand dollars for W. L. House on your deed upon satisfaction of mortgage on lands--answer." The telegram was the first information Rivers had that there was a mortgage of record on the lands unsatisfied. Rivers had mortgaged the lands to the Bank of Hattiesburg, Mississippi, March 2, 1912. The mortgage was settled that year, but the record had not been satisfied, and River held the cashier's check pending orders from the Hattiesburg Bank to satisfy the mortgage on the record. Rivers did not deposit the cashier's check in his home bank for collection until about ten days after receiving it. The First National Bank, on which the cashier's check was drawn, did not request Rivers to withhold the deposit, and the check, he says, was not deposited because of the telegram of the Farmers Bank. Rivers sent a release--satisfaction--of the mortgage for record, and at the same time sent the cashier's check to the First National Bank. That bank, in the meantime, had become insolvent, and was in the hands of a receiver, so when the check was presented it was not paid.

This action was instituted by Rivers against House and the Farmers Bank to recover the balance of the purchase money. House defended on the ground that he had paid the balance of the purchase money. The Farmers Bank defended on the ground that the telegram sent by it to Rivers was without consideration, and furthermore was only an offer of guaranty which was never accepted. Both House and the Farmers Bank also defended on the ground that Rivers had presented a claim for the amount involved to the receiver of the First National Bank which estopped him from claiming against them. Such other facts as may be necessary will be stated as we proceed.

The court rendered a decree dismissing the complaint against the Farmers Bank for want of equity, and a decree in favor of Rivers against House for the sum of $ 1899.47, and...