Smith v. Reserve Loan Life Insurance Co.
| Decision Date | 30 March 1916 |
| Citation | 184 S.W. 464,267 Mo. 342 |
| Parties | MABEL L. SMITH v. RESERVE LOAN LIFE INSURANCE COMPANY et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.
Affirmed.
Guilford A. Deitch, Ed. E. Yates and Perry S. Rader for appellants.
(1) The Postal Telegraph-Cable Company "was bound to deliver to appellant the money," not its check, nor a draft, nor an order on itself. Robinson v. Tel. Co., 24 Ky. L Rep. 456; Tel. Co. v. Gougar, 84 Ind. 178. (2) The order drawn by "C. Fred Knight, Money Transfer Agent," at Indianapolis, directing the "Treasurer of Money Transfer Department Postal Telegraph-Cable Co." at New York to "pay to the order of Reserve Loan Life Insurance Company $ 595.40," was not negotiable, was not a check or a bankable draft, and it is very doubtful if it had any bankable or negotiable quality unless and until accepted by the treasurer in New York, either in his own name or in such way as to bind the telegraph company. (a) It was not negotiable because it was expressly made payable out of a particular fund; "and charge same to account of Money Transfers." School Township v. Andress, 56 Ind. 163; McGee v. Larramore, 50 Mo. 427; 1 Daniel on Negotiable Instruments (6 Ed.), sec. 50; Richardson v Carpenter, 46 N.Y. 664; Hoagland v. Erck, 11 Neb. 580; Hannay v. Trust Co., 187 F. 686. (b) It was not a bank draft because it was not drawn by one bank upon another bank. (c) It was not a check because not drawn on a bank. 2 Daniel on Negotiable Instruments (6 Ed.), secs 1566, 1568; Bank v. Bank, 10 Wall. (77 U.S.) 647; Hawley v. Jette, 10 Ore. 34. (d) It was not a bill of exchange: Because it was not drawn on the general funds of the Postal Telegraph-Cable Company, but against the money in "Money Transfer Department." Espy v. Bank, 18 Wall. (85 U.S.) 152; Wood's Byles on Bills & Notes, sec. 1; Daniel on Negotiable Instruments (6 Ed.), secs. 27, 29. It was not a bill of exchange of the Postal Telegraph-Cable Company because it was not signed by such company or by any person in its name, and does not purport to be drawn by it or for it. It could not have been enforced against said company, if accepted by defendant, and resisted by said company. 7 Cyc. 549 (e); Wood's Byles on Bills & Notes, sec. 1; Daniel on Negotiable Instruments (6 Ed.), secs. 27, 29; Bank v. Hooper, 71 Mass. 567; Crum v. Boyd, 9 Ind. 289; Snow v. Goodrich, 14 Me. 235; Stackpole v. Arnold, 11 Mass. 27, 29; Banking Co. v. Van Antwerp, 51 N.Y.S. 812; Pentz v. Stanton, 10 Wend. (N. Y.) 271; 1 Am. & Eng. Ency. Law (2 Ed.), 1047 (5); Bank v. Anderson, 32 P. 168; Freman's Note, 48 Am. St. 919; McClellan v. Robe, 93 Ind. 298; Bank v. Steel Co., 155 Ind. 581. The order unless accepted by the Postal Telegraph-Cable Company, or by its treasurer in New York, or at least by "the Treasurer Money Transfer Department Postal Telegraph-Cable Company, 253 Broadway, New York," could not have been enforced as a legal demand against said telegraph company. The liability of the drawee on a bill begins with its acceptance. Reilly v. Daly, 159 Pa. St. 611; McGinn v. Bank, 131 Pa. St. 364; Bank v. Bank, 69 Ind. 480; Marriner v. Lumber Co., 113 N.C. 52. (3) "A bill of exchange is not money in any sense, and is not made a legal tender by any statutory enactment." Ins. Co. v. Clark, 41 Ind.App. 351; Goss v. Bowen, 104 Ind. 209; Boyd v. Olvey, 82 Ind. 298. (4) Even if the transfer order had been received by defendant it would not have been a payment of the note unless at the time it was accepted there was a positive agreement that it was being accepted as full payment and satisfaction of the debt. Appleton v. Kennon, 19 Mo. 637; Howard v. Jones, 33 Mo. 583; Wiles v. Robinson, 80 Mo. 47; Commisky v. McPike, 20 Mo.App. 66; Holland v. Rongey, 168 Mo. 16; Way v. Caddell, 82 Mo.App. 144. And the same is true even though the telegraph money order be considered a check or draft. Johnson-Brinkman Coms. Co. v. Bank, 116 Mo. 570; Hall & Robinson v. Railroad, 50 Mo.App. 183; Prewitt v. Brown, 101 Mo.App. 259. A payment other than in money necessarily rests upon an independent agreement. Moore v. Renick, 95 Mo.App. 643; Rider v. Culp, 68 Mo.App. 531; Ulsch v. Muller, 143 Mass. 379. The giving and accepting of an order for prior indebtedness will not be regarded as payment thereof unless there be an express agreement between the parties to that effect. Farwell & Co. v. Salpaugh, 32 Iowa 583; Railroad v. Burns, 61 Neb. 794; Estey v. Birnbaum, 9 S.D. 175; Cliver v. Heil, 95 Wis. 365. (5) If the order signed by "C. Fred Knight, Money Transfer Agent," is considered the obligation of the Postal Telegraph Company, the drawer and drawee were one and the same person, or a bill drawn by the drawer upon himself (if the "Treasurer of Money Transfer Department" can be considered the company); and such an order is in effect the promissory note of the drawer or telegraph company or of Knight, and defendant was entitled to consider it as a promissory note and nothing more. Railroad v. Davis, 20 Ind. 8; Road Co. v. Branegan, 40 Ind. 362; Board of Commissioners v. Day, 19 Ind. 452; Railroad v. Dillon, 7 Ind. 405; Fairchild v. Railroad, 15 N.Y. 340; Haney v. Beet Sugar Co., 1 Dougl. (Mich.) 197; 1 Daniel on Negotiable Instruments (6 Ed.), sec. 424; 1 Parsons on Bills & Notes, p. 63; Randolph v. Parish, 9 Port. (Ala.) 76; Poydras v. Delmare, 13 La. 98. If defendant was entitled to treat said order as a promissory note, then it was no tender. It was not money, or "that which by common consent is considered and treated as money." One promissory note is not a legal tender in payment of another, unless expressly agreed to be accepted as such. Holland v. Rongey, 168 Mo. 16; Keyser v. Hinkle, 127 Mo.App. 75; Bradway v. Groendyke, 153 Ind. 508; Ins. Co. v. Chappelow, 83 Ind. 429.
Edward L. Scarritt, Constantine J. Smyth, Ed. P. Smith and W. A. Schall for respondent.
(1) There was no error in admission of testimony. Supreme Tent v. Fisher, 90 N. E. (Ind.) 1044; Berthold v. Reyburn, 37 Mo. 587; Land Co. v. Moody, 198 F. 7; Breed v. Hurd, 23 Mass. 356. (2) The burden of proof was on the defendants. Harris v. Insurance Co., 248 Mo. 317; Crenshaw v. Insurance Co., 71 Mo.App. 52; 25 Cyc. 925-927; Life Assurance Society v. Cannon, 201 Ill. 250. (3) The facts show that the insured made a good tender of the amount due upon the premium note with interest, within the time provided in the note. (4) The tender made was sufficient in law. Willcotts v. Ins. Co., 81 Ind. 300; Mathews v. Modern Woodman, 236 Mo. 344; Halsey v. Insurance Co., 258 Mo. 662; Graham v. Ins. Co., 62 A. (N. J.) 681; Beatty v. Miller, 94 N. E. (Ind.) 897; Gradle v. Warner, 140 Ill. 123; Kitchell v. Schneider, 103 N. E. (Ind.) 647; Gunby v. Ingram, 36 L. R. A. (N. S.) 232; Edmonds E. C. Company v. Kilpatrick, 166 Mo. 262; Potter v. Schafer, 209 Mo. 586; Schaeffer v. Coldron, 85 A. 98; Bristol v. Mente, 80 N.Y.S. 52; McGrath v. Gagner, 77 Md. 331; Bonding Co. v. Bruce, 13 Ind.App. 550; Cox v. Hayes, 18 Ind.App. 220; Mahon v. Waters, 60 Mo. 170; McMahn v. Insurance Co., 128 F. 388.
-- This is a suit on an insurance policy taken out by Frank H. Smith on November 11, 1909, in favor of his wife, Mabel L. Smith, the respondent herein, in the sum of $ 10,000 in the Reserve Loan Life Insurance Company, upon payment of the first annual premium thereon of $ 732.
On the 11th day of November, 1910, when the second annual premium became due, the said Frank L. Smith was unable to pay the same and applied to the defendant company for an extension of time; to-wit, to the 11th of February, 1911, which extension was granted by said defendant company, in consideration of which the said Frank L. Smith paid to the defendant company the sum of $ 108.93 in cash and sent the defendant company one of the coupons mentioned in said policy for $ 36.60, and executed an extension premium note for $ 595.40 payable on February 11, 1911, providing that if said note be not paid upon maturity the policy shall be without notice null and void.
The Reserve Loan Life Insurance Co., 900 Odd Fellows Bldg.
I this day telegraph you five hundred and ninety-five dollars and forty cents in payment of note given by Frank H. Smith, for premium on policy No. 25684, issued to Frank H. Smith, and due Feb. 11th, this year. Return note and send receipt for premium to Frank H. Smith, Aldan, Delaware Co., Pa.
"Arthur A. Remillard."
And after sending the telegram, and within the hour, he wrote and took to the post office, stamped and registered the following letter:
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