Selby v. McCullough

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 66
• Parties: THOMAS SELBY ET AL., Respondents, v. D. W. MCCULLOUGH ET AL., Appellants.
• Court: Missouri Court of Appeals

26 Mo.App. 66

THOMAS SELBY ET AL., Respondents, v. D. W. MCCULLOUGH ET AL., Appellants.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the Laclede County Circuit Court, W. J. WALLACE, Judge.

Affirmed.

A. L ROSS and D. E. WRAY, for the appellants: There was no partnership. 3 Addison on Cont. 363. It was the duty of the plaintiffs to present the check at the bank on which it was drawn, within a reasonable time after receiving it, and, in case of dishonor, to give the drawer notice within a likely reasonable time; otherwise, the delay is at his own peril. Story on Prom. Notes (5 Ed.) sect. 493, pp. 650-1-2; Salisbury v. Renick, 44 Mo. 554; St. John v Homan, 8 Mo. 382.

J. P NIXON, for the respondents: The taking of a check or note for a debt, constitutes, in law, no payment, unless there is an express agreement to that effect. Wiles v. Robinson, 80 Mo. 47; Riggs v. Good rich, 74 Mo. 108. The variance, if any, between the allegations of the petition, that the defendants purchased the sheep, and the proof that they purchased them as partners, is wholly immaterial after verdict. The defendants did not comply with the statute in such cases, filed no affidavit, and can not now be heard to complain. Rev. Stat., sect. 3565; Hollfield v. Black, 20 Mo. 328; Olmstead v. Smith, 87 Mo. 602; Meyer v. Chambers, 68 Mo. 626; 8 Mo.App. 600.

OPINION

THOMPSON J.

This action was brought in the circuit court for sixty dollars, the price of thirty head of sheep alleged to have been sold and delivered by the plaintiffs, who were copartners, to the defendants. The defendants answered separately. The defendant, Moss, filed an answer, the substance of which was, that he and the other defendant were not co-partners, and which denied that the sheep were sold and delivered to him, jointly with the other defendants, or individually, and which denied any indebtedness on account of the sale. The answer of the defendant, McCullough, denied that the co-partnership existed between him and the defendant, Moss, or that they bought the sheep as partners; but alleged the facts to be, that he, McCullough, bought the sheep of the plaintiffs and paid for them in full. A trial before a jury resulted in a judgment and verdict for the plaintiffs against both defendants, for the amount claimed, with interest.

At the trial, there was evidence tending to show that the two defendants represented themselves as partners in the purchase of the sheep, and in this character purchased the sheep of the plaintiffs for the agreed price of sixty dollars, and that, in lieu of cash, the defendant, McCullough, gave to the plaintiffs his check for the sum of sixty dollars, upon the Morgan County Bank, of Versailles, Mo.; that the plaintiffs entrusted the check for collection to H. H. Wind, who was about to attend a political convention at Sedalia, on which errand he would have to pass through Versailles. The plaintiffs gave evidence, tending to show that they objected to taking the check, but were assured that it would be cashed as soon as presented, and that the defendants would guarantee the payment of the money upon it, and that " McCullough and Moss agreed that H. H. Wind should take the check when he went up to the democratic convention, and get the money for us." Evidence was, also, given which tended to show that the sale took place on the fourth day of August; that the check was given to Wind on the thirteenth or fourteenth day of August; that Wind passed through Versailles on the fifteenth day of August, but did not present the check to the bank until the nineteenth or twentieth day of August, when he was on his way back from the convention at Sedalia. The reason given by Wind, why he did not call for the money as he went to the convention, was, that he did not want to carry it around. When Wind presented the check, the manager of the bank told him that they had no funds; that their funds were all in St. Louis; that they were looking for money that day, and that they could not do any better for him than to give him St. Louis exchange, unless he would remain over until the next day. Wind objected to this, but finally consented to take St. Louis exchange, and, thereupon, the bank drew him its bill of exchange on the Laclede Bank, of St. Louis, for the sum of sixty dollars. Wind brought this draft of the Morgan County Bank on the Laclede Bank of St. Louis, to one of the plaintiffs in person, and explained to him the transaction. The latter took the draft and said that he would rather have the money, but excused Wind for taking the course he did. The plaintiffs negotiated the draft to one McIntire, and received the face value of it; the latter sent it to St. Louis for collection; it was returned protested, and the plaintiffs took it out of the hands of McIntire, and, so far as appears, still held it at the time of the trial. The Morgan County Bank closed its doors and became " utterly and entirely insolvent," on the twenty-third day of August. The evidence shows, without dispute, that when the defendant, McCullough, drew the check upon the bank, and when the check was presented to the bank, the state of McCullough's account with the bank was such that the bank was bound to pay the check. That was not controverted, and the bookkeeper of the bank, who, in the presence of Wind, examined McCullough's account, reported that it was " O. K." It was also testified to, by McCullough himself, and there was no opposing evidence. Wind passed through Versailles on his way to the convention on the fifteenth day of August, and might, so far as the evidence discloses, have collected the check on the same day, if the bank had had funds on that day wherewith to pay it. But upon this point the evidence is entirely silent. There was no direct evidence as to the condition of the bank, between the thirteenth and fourteenth days of August, when the check was given, and the nineteenth and twentieth days, when it was presented.

I. The question whether a partnership existed between the two defendants and whether the sheep were purchased on their partnership account, does not depend, as the defendants' counsel argue, upon the question whether the defendant, Moss, was a part owner in the property of the common venture. The defendants' evidence tended to show that the two had entered into an arrangement by which McCullough was to purchase sheep, and Moss was to keep them for a share in the increase. Although this might not have constituted a partnership between McCullough and Moss inter se, yet it did not prevent them from holding themselves out to third persons as partners, and rendering themselves liable to third persons as such. Now, the plaintiffs' evidence tended to show that they did so hold themselves out to the plaintiffs, and the court gave an instruction to the effect that if they did so hold themselves out, this would make them jointly liable to the plaintiffs. There does not, therefore, seem to be any available error in the rulings of the court on this point.

II. The court submitted the case to the jury upon instructions to the effect that, if the draft given by McCullough, to plaintiffs was presented by the plaintiffs to the Morgan County Bank within a reasonable time, and payment therefor refused by the Morgan County Bank, the plaintiffs could recover. These instructions were in accordance with the well known rule that, one who accepts a check upon a banker, in settlement of an indebtedness, is bound, in order to hold the drawer of the check, to present the check to the banker for payment within a reasonable time, and that what will be a reasonable time will depend upon the circumstances of each particular case. In Dyas v. Hanson (14 Mo.App. 363), this court held, after much consideration, that, where the facts are clear and uncontradicted, what is reasonable diligence in presenting a check or draft for payment is a question of law for the court, though if the court submit it to the jury and they decide it rightly, the error will not afford ground of reversing the judgment. In this case both parties requested instructions which submitted the question to the jury, and we can not say, in view of the evidence, that the jury have decided it wrongly. In the first place, if the evidence of the plaintiffs is true, Wind was selected by an agreement between the elder Mr. Selby and the...