Salisbury v. Renick

• Decision Date: 31 October 1869
• Citation: Salisbury v. Renick, 44 Mo. 554 (Mo. 1869)
• Parties: THOMAS SALISBURY, Respondent, v. RENICK & PETERSON, Appellants.
• Court: Missouri Supreme Court

44 Mo. 554

THOMAS SALISBURY, Respondent,

v.RENICK & PETERSON, Appellants.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

T. T. Gantt, for appellants, relied upon Commercial Bank of Albany v. Clark, 28 Verm. 325, 329; Duvall v. Farmers' Bank, 9 Gill & J. 31; Commercial Bank v. Hughes, 17 Wend. 98-9; Breed v. Hillhouse, 7 Conn. 523; Hall v. Freeman, 2 Nott & McC. 479; Low v. Howard, 10 Cush. 163; Conroy v. Warren, 3 Johns. Cas., per Thompson, J., 262, and Kent, J., 264; Story on Bills, § 291 et seq.; Byles on Bills, 150, 159 et seq.; Sice v. Cunningham, 1 Cow. 397, 406; Miller v. Hackley, 5 Johns. 385; Griffin v. Goff, 12 Johns. 423; Pars. on Bills, 621, note z; Story on Bills, § 320; Mogadara v. Holt, 1 Shower, 318; Borradaile v. Low, 6 Taunton, 93 et seq.; Lundie v. Robertson, 7 East. 231; Gibbon v. Coggen, 2 Campb. 188; Taylor v. Jones, 2 Camp. 105; Blesard v. Hirst et al., 5 Bur. 2,670.

Hill & Jewett, for respondent.

WAGNER, Judge, delivered the opinion of the court.

It appears from the record that on the 9th day of June, 1857, Wm. Salisbury, plaintiff's assignor, purchased from defendants, who were bankers doing business in St. Louis, a bill of exchange on New York for $3,200. The bill was payable at sight, and directed to Beebe & Co., defendants' correspondents in the latter city. On the 24th day of August, 1857, the house of Beebe & Co. became bankrupt, and stopped payment, having in their hands a large amount of funds belonging to defendants; and it is admitted by the facts in the case, that from the time the bill was drawn up to the time of the failure of Beebe & Co., they had in their hands funds belonging to the defendants in amonnt greatly in excess of the bill. The bill was never presented for payment, and in October of the same year Salisbury presented the same to the defendants and demanded that they should pay the money thereon.

The petition avers that it was agreed and understood at the time the bill was purchased that if Salisbury, who was going to Ohio on business, should not need the money, the defendants would take back the bill, charging the usual rates of exchange. There is a further allegation that when the bill was presented for payment in October the defendants promised to take up and pay the same.

The answer contains an express denial of the allegations in the petition. The evidence is conflicting; and, under the instructions of the court, the jury found for the plaintiff.

It is not my province to comment on the evidence; but the law, as laid down by the court in its instruction, must be examined to see whether there was any misdirection. The first instruction given for the plaintiff tells the jury that if they believe from the evidence that at the time the draft was bought there was an understanding or agreement between Wm. Salisbury and either of the defendants that said Salisbury might do as he pleased about using or presenting the draft, and that if he did not want to use it, he might return it to the defendants, and they would pay it, deducting exchange or expenses, then defendants are liable, though said draft was not presented to Beebe & Co., if the draft was returned within a reasonable time to defendants. The general rule in regard to presentment is that the bill must be presented within a reasonable time; and what will be a reasonable time must depend upon all the circumstances of each particular case. (Story on Bills, § 231, and cases cited.)

Where a bill is payable at sight, or a certain number of days after sight, if the holder keeps it in his own possession for an unreasonable time, and thus locks it up from circulation, he makes the bill his own, and will have no remedy against any of the other antecedent parties upon the bill, from or through whom he derived his title. (Story on Bills.)

In the case of Linville et al. v. Welch, 29 Mo. 203, Ellis & Sturgis, bankers in Cincinnati, drew a bill of exchange in favor of Welch, upon the banking house of Loker, Renick & Co., St. Louis. The bill was dated October 24, 1854, and afterwards indorsed by Welch to Linville. From the notary's entry on the face of the bill and the protest, it appeared that the bill or draft was protested for non-payment on the 13th of December, 1854. On the day of the protest the notary sent notice of protest to the indorsers. It appeared that the plaintiffs sent the bill to their agent, Matthews, at St. Louis, Mo., and he on the 17th of November, 1854, presented it to Loker, Renick & Co., who refused to pay the same. The banking house of Ellis & Sturgis had failed November 7, 1854. The agent returned the bill or draft to the plaintiffs, who sent the same back to the agent to present again. He did so on the 13th of December, and the bill was protested on that day for non-payment. There was no protest made on the first refusal of payment, though there was evidence that the defendant had notice of the first refusal. At the trial in the Circuit Court the jury were instructed that if they believed from the evidence in the cause that the bill was presented to Loker, Renick & Co. for payment in a reasonable time, that payment was demanded and refused, and that the defendant was notified of the presentment and refused to pay in a reasonable time, then they should find for the plaintiffs. The jury found for the plaintiffs, and on appeal to this court the judgment was reversed, Napton, J., speaking for the court, saying: “In relation to the presentment to Loker, Renick & Co., the law requires this to be made in a reasonable time, and what this will be must depend upon the circumstances of the case. That the presentation made in this case by Matthews, on the 13th of December, was not within reasonable time, would seem to follow from the fact that a previous presentation had been made on the 17th of November.”

Although the case just cited and the one at bar are not entirely parallel or analogous, yet the former furnishes an aid as indicating how far courts will go in deciding upon the question of reasonable time. The court...