The Second Nat'l Bank of Peoria v. Diefendorf
| Decision Date | 30 September 1878 |
| Citation | 1878 WL 10171,90 Ill. 396 |
| Parties | THE SECOND NATIONAL BANK OF PEORIAv.ROBERT DIEFENDORF. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Peoria county; the Hon. J. W. COCHRAN, Judge, presiding.
This was an action of assumpsit, brought by Robert Diefendorf, the appellee, against the Second National Bank of Peoria, in the circuit court of Peoria county, upon an alleged liability to indemnify the plaintiff as drawer of a bill of exchange, as follows:
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¦$27,836.38.¦Chicago, July 2, 1870.¦
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At sight pay to the order of James DeKoven, Esq., cash in N. Y. Ex., $27,836.38, value received, and charge to account of as advised.
R. DIEFENDORF.
To J. W. RAE, Esq., Peoria, Ill.
DeKoven was cashier of the Northwestern National Bank of Chicago. Diefendorf was a grain commission merchant, doing business in the city of Chicago, and Rae was engaged in the grain business in Peoria.
Rae, desiring to purchase a quantity of wheat in Chicago, directed Diefendorf to make the purchase and to ship the same to New York for him, authorizing Diefendorf to draw upon him, so that the draft would come through the Second National Bank at Peoria.
Diefendorf made the purchase for Rae and procured a bill of lading and insurance certificates for the same. He then drew the draft as above, and the Northwestern National Bank of Chicago advanced the money upon the draft, the bill of lading and insurance certificates being thereto attached. When the draft was presented to Rae, he refused to accept it and let it go to protest.
The grain went on to New York and was sold at a loss; the proceeds of the sale went to the Northwestern National Bank and were credited upon the draft. Diefendorf afterward took up the draft, and brought this suit for the amount he had to pay in the transaction.
The alleged liability of the Peoria bank is claimed as arising upon the following written correspondence and telegrams:
Peoria, Ill., June 29, 1870.
R. DIEFENDORF, ESQ., Chicago:
Received at Peoria, 11:40, A. M.
Chicago, June 30, 1870.
To J. W. RAE:
Wheat $1.06 aboard, freight 20 to 21. Have your bank telegraph Northwestern National Bank that they will advance cost on receipt of bill lading. Answer quick.
R. DIEFENDORF.
Received at Chicago, June 30, 12:20 P. M.
Peoria, Ill., 30th, 1870.
To R. DIEFENDORF:
Bank here says, “if Northwestern will send draft to them, they can take care of it.” Draw as per instructions.
J. W. RAE.
Received at Peoria, June 30, 1 P. M.
Dated Chicago, 30, 1870.
To J. W. RAE:
Wheat now $1.07 aboard. Think I will get some at this, afternoon. Freight probably twenty cents. My bank says that they will send the Second National Bank. Have them telegraph that they will advance on bill lading.
R. DIEFENDORF.
Peoria, Ill., June 30, 1870.
R. DIEFENDORF, ESQ., Chicago:
Dear Sir--I have your second telegram late this afternoon. I regret you did not fill my order at once. If your bank wants any information, let them telegraph my bank--it is not for this bank to telegraph. They say they don't know what you mean in asking them to advance on wheat. I am ready to pay the draft on presentation. I look for wheat to advance in a few days, and hope you will make no delay in following instructions.
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¦Yours, truly, ¦J. W. RAE.¦
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Received at Chicago, July 1, 9 A. M.
Peoria, Ill., 1, 1870.
To R. DIEFENDORF:
Can you execute orders to-day? Answer quick.
J. W. RAE.
Diefendorf answered immediately:
Received at Chicago, July 1, 12:05 P. M.
Peoria, Ill., 1, 1870.
To R. DIEFENDORF:
My bank say they will telegraph Northwestern everything all right.
J. W. RAE.
Received at Chicago, July 1, 3:30 P. M.
Peoria, Ill., 1, 1870.
To JOHN DE KOVEN, Cashier:
Draft on Rae will be protected, provided bills of lading, transfers, insurance and amount drawn for are all right.
L. HOWELL, Pres't. Howell was president of the Second National Bank of Peoria, and this dispatch is the foundation of plaintiff's claim.
July 1, 1870.
J. W. RAE, ESQ., Peoria:
Dear Sir--Your telegram, inquiring if I could fill your order to-day, was duly received. I answered yes, if your bank would telegraph the Northwestern National, here, that they would advance, etc. The Northwestern has just received Mr. Howell's dispatch (5 P. M.), saying my draft on you would be protected if transfers, etc., were right, and the amount drawn for was correct. It will, of course, be too late to do anything to-day but to see where we can get it to-morrow. Doubtless can get up one cargo. The cool weather has firmed up wheat considerably. Sales this P. M. at $1.07 1/2 in store. Will advise you of operations by telegraph to-morrow.
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¦Yours, truly,¦R. DIEFENDORF. ¦
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Received at Peoria, 10:25 A. M.
July 1, 1870.
To J. W. RAE:
Bought 25,000, 8 1/2 in store, freight 20 cents. Ship to-day.
R. DIEFENDORF.
This bears date July 1. It doubtless should be July 2. Rae, on the same day, replies by letter:
I have your dispatch to-day, stating you have bought 25,000 bus. wheat, at $1.08 1/2 in store. I presume this is extra Northside wheat, as our quotations for No. 2 to-day are $1.06 1/2. Please send large sample to consignee; also send me sample.
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¦Yours, truly, ¦J. W. RAE.¦
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July 2.
To J. W. RAE, ESQ., Peoria:
Dear Sir--We inclose account of purchase, and shipped cargo prop. Plymouth, 24,917 bush. 2 wheat, and have drawn on you in N. Y. Ex. for $27,836.38. Our bank charges 3/8 on Peoria. They say the banks there charge 1/8 for ex., and its 1/8 disct. here, thus leaving but small margin, after all, for the use of the money. On Friday, after Mr. Howell telegraphed the N. W. bank, wheat was decidedly firmer, and the general impression prevailing that it would go still higher. Saturday evening, on the “open board,” the price was $1.08 1/2 to $1.09, and difficult to purchase. I thought best to buy, as your instructions were positive, and there had been so much delay, but on the opening of change the price receded. It only shows that it is out of the question to tell how it will go. This cargo is in fine condition, croaking to the contrary. Please telegraph Tuesday A. M. whether we shall buy the balance or not. Let us know how much Mr. Howell charges. We may get an abatement on the ex.
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¦Yours, truly,¦R. DIEFENDORF. ¦
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Diefendorf sent with this letter his bill of advances, including $498.34 for storage, $87 for insurance, $12.46 for inspection, and $124.58 for his own commissions. On the 4th of July, Rae ordered Diefendorf not to fill the balance of the order.
Peoria, Ill., July 5, 1870.
R. DIEFENDORF, ESQ., Chicago:
Dear Sir--I have yours of the 2d, and note contents. The draft was presented to-day, and I refused to pay, as it was altogether too much. When I gave you orders to buy the wheat, I gave it on your telegram of 1.06 on board, and you make it about 1.11. This is too much of the good thing.
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¦Yours, truly, ¦J. W. RAE.¦
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Peoria, July 5, 1870.
JOHN DEKOVEN, ESQ., Cashier, Chicago, Ill.:
Dear Sir--Your favor of the 4th inst., with inclosure, as stated, rec'd. The same is herewith returned, protested, for non-payment. J. W. Rae, sight, $27,836.38; protest fees, $2.30, cy. Dr. Mr. Rae claims that the wheat against which this was drawn was purchased at 1.06 free on board, whilst it is invoiced at higher rates, with shipping charges.
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¦Very respectfully, yours,¦L. HOWELL, Pres't.¦
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The court below, upon a trial without a jury, found for the plaintiff in the sum of $3528.64, and rendered judgment accordingly, from which the defendant appealed. Mr. D. MCCULLOCH, and Mr. JOHN MUCKLE, for the appellant:
The contract sued upon is not shown to be appellant's contract. The telegram which is the foundation of the suit is signed “L. Howell, prest.” It does not purport to be the act of appellant; therefore, appellant can not be held upon it, unless it is proved to be its contract by extrinsic evidence. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326; Elwell v. Dodge, 33 Barb. 336; Morse on Banks and Banking, 160.
The only evidence to connect appellant with it consists of the correspondence between Rae and Diefendorf, which is not of itself evidence against appellant. These letters and telegrams are merely declarations inter alios and not binding on appellant.
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