Scudder v. Union National Bank
Citation | 91 U.S. 406,23 L.Ed. 245 |
Parties | SCUDDER v. UNION NATIONAL BANK |
Decision Date | 01 October 1875 |
Court | United States Supreme Court |
ERROR to the Circuit Court of the United States for the Northern District of Illinois.
This was an action of assumpsit against William H. Scudder and others, constituting the firm of Henry Ames & Co., to recover the amount of a bill of exchange. Process was served only upon Scudder, who pleaded non-assumpsit and several special pleas.
The statute of Illinois on which one of the pleas is based provides that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, 'unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him specially authorized.'
The Missouri statute provides:——
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The parties went to trial; and the bank offered evidence tending to establish, that for over a year prior to the seventh day of July, 1871, the firm of Henry Ames & Co. were engaged in business at St. Louis, Mo., and that Leland & Harbach, commission-merchants in Chicago, had from time to time bought lots of pork for said firm, on commission; that on the seventh day of July, 1871, the defendant Scudder, a member of said firm, came to Chicago at the request of Leland & Harbach, who were then in an embarrassed condition, owing to speculations in grain; that, on the same day, John L. Hancock delivered to Leland & Harbach 500 barrels of pork, which they had bought of him for Ames & Co., by their requestion and direction, at $16.25 per barrel, in May, to be delivered in July, of which purchase said Ames & Co. had been duly advised; that, in payment of said pork, Leland & Harbach gave Hancock their check on the Union National Bank of Chicago for $8,031; and that the charges for inspection and commissions made the total cost of the pork $8,125.
That Leland & Harbach, on the same day, shipped the pork to Ames & Co. at St. Louis, Mo., who received and sold it; and that, at the time the bill was drawn, Scudder, who was then present in the office of Leland & Harbach, consented to the receipt of said pork, and verbally authorized them to draw on Ames & Co. for the amount due therefor.
'CHICAGO, July 7, 1871.
'Pay to the order of Union National Bank eight thousand one hundred and twenty-five dollars, value received, and charge to account of
'LELAND & HARBACH.
'To Messrs. Henry Ames & Co., St. Louis, Mo.'- —was on said seventh day of July, 1871, presented for discount at the Union National Bank by Leland & Harbach's clerk; and the vice-president of the bank declined to give Leland & Harbach credit for the bill without a bill of lading or other security. That the clerk then returned to Leland & Harbach's office, and stated the bank's objections, Scudder being present; and, in the presence and hearing of said defendant, Scudder, the clerk was told by Leland or Harbach to return to the bank, and tell the vice-president that Scudder, one of the firm of Ames & Co., was then in Chicago, and had authorized the drawing of said draft, and that it was drawn against 500 barrels of pork that day bought by Leland & Harbach for Henry Ames & Co., and duly shipped to them. That the clerk returned, and made the statement as directed; and the vice-president, upon the faith of such statement that the bill was authorized by defendants, discounted said bill, the proceeds were passed to Leland & Harbach's credit, and the check given by them to Hancock in payment of said pork was paid out of the proceeds of said draft.
The bank then offered in evidence the said bill of exchange with a notarial certificate of protest, showing that the bill was presented to Henry Ames & Co. for payment July 8, 1871, and duly protested for non-payment.
It was admitted that said Ames & Co. had never paid said bill.
The court charged the jury. To the following parts thereof Scudder excepted:——
'It being an admitted fact that the defendants have the proceeds of the pork against which this draft was drawn, such fact may also be considered by you as an additional circumstance tending to show a promise on the part of the defendants to pay the draft.
'The real issue in this case is, whether Mr. Scudder authorized the drawing of the draft in question, and expressly or impliedly promised to pay it.'
The jury found a verdict in favor of the bank; and the court, overruling a motion for a new trial, rendered judgment. Scudder sued out this writ of error.
Mr. John H. Thompson for plaintiff in error cited Maggs v. Ames, 4 Bing. 470; 2 Par. on Notes and Bills, 324 et seq.; Story's Confl. of Laws, sects. 280, 318; Worcester Bank v. Wells et al., 8 Met. 107; Hunt v. Standart, 15 Ind. 33; Boyce v. Edwards, 4 Pet. 123; Frazier v. Warfield, 9 Sm. & M. 220; Springer v. Foster, 2 Story, 387.
Mr. Melville W. Fuller, contra.
An acceptance of a bill need not be in writing, except when so required by statutory provisions. 1 Par. on Notes and Bills, 285.
In Illinois it is well settled that a parol promise to pay an existing bill is valid (Jones v. C. Bluff's Bank, 34 Ill. 319), and a parol promise to pay an existing or non-existing bill is a virtual acceptance thereof. Nelson v. First Nat. Bank, 48 id. 39; Mason v. Dousay, 35 id. 424; Jones v. Bank, 34 id. 319.
It is not necessary to examine the question, whether a denial of the motion to set aside the summons can be presented as a ground of error on this hearing. The facts are so clearly against the motion, that the question does not arise.
Nor does it become necessary to examine the question of pleading, which is so elaborately spread out in the record. The only serious question in the case is presented upon the objection to the admission of evidence and to the charge of the judge.
'CHICAGO, July 7, 1871.
'Pay to the order of Union National Bank eight thousand one hundred and twenty-five dollars, value received, and charge to account of
'LELAND & HARBACH.
'To Messrs. Henry Ames & Co., St. Louis, Mo.'
By the direction of Ames & Co., Leland & Harbach had bought for them, and on the seventh day of July, 1871, shipped to them at St. Louis, 500 barrels of pork, and gave their check on the Union bank to Hancock, the seller of the same, for $8,000.
Leland & Harbach then drew the bill in question, and sent the same by their clerk to the Union Bank (the plaintiff below) to be placed to their credit. The bank declined to receive the bill, unless accompanied by the bill of lading or other security. The clerk returned, and reported accordingly to Leland & Harbach. One of the firm then directed the clerk to return to the bank, and say that Mr. Scudder, one of the firm of Ames & Co. (the drawees), was then in Chicago, and had authorized the drawing of the draft; that it was drawn against 500 barrels of pork that day bought by Leland & Harbach for them, and duly shipped to them. The clerk returned to the bank, and made this statement to...
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