Thompson v. Kellogg
Decision Date | 31 March 1856 |
Citation | 23 Mo. 281 |
Parties | THOMPSON, Appellant, v. KELLOGG, Respondent. |
Court | Missouri Supreme Court |
1. In order to constitute a transaction a payment, there must be both a delivery by the holder and an acceptance by the creditor, with the purpose on the part of the former to part with, and of the latter to accept of, the immediate ownership of the thing passed from the one to the other.
Appeal from St. Louis Court of Common Pleas.
This was a suit to recover a sum of money alleged to have been paid and delivered to defendant, Kellogg, by one G. De Baun, jr., in satisfaction of a bill of exchange presented by said Kellogg, as notary, to the said De Baun, as the acceptor thereof, for payment. Plaintiff, Thompson, drew his bill of exchange on George De Baun, jr., who accepted the same. Said bill was placed in the hands of defendant, a notary public, to be presented by him for payment at maturity. It was presented at its maturity by the defendant to George De Baun, jr., the acceptor, who, when payment was demanded, uncovered a large quantity of dimes and half dimes lying on a table, and told defendant that there was the money for him. Defendant went up to the table, put his hand on the money, and in running his hand over it, mixed the coin together somewhat, and said, “I suppose I shall have to take it, and I will go to my office to get bags for it.” Defendant then went out and returned in three or four minutes. During this interval, a levy had been made upon the money as the property of George De Baun, jr., under a judgment against him. Defendant again demanded payment of the bill. De Baun told defendant that there was the money; that he had once paid it to defendant. Defendant replied, “I won't receive it; it is in the hands of the sheriff.” De Baun told the deputy sheriff, when making the levy, that the money did not belong to him. There was further evidence bearing upon the question of delivery and acceptance of the money, which it is unnecessary to set forth.
The bill was protested for non-payment by the defendant, Kellogg, and the holder returned the bill to plaintiff, the drawer thereof, and made an assignment to plaintiff of whatever cause of action he had against the said Kellogg.
The court gave the following instructions of its own motion: To the giving of which the plaintiff duly then and there excepted.
The following instruction, asked on the part of plaintiff, was refused by the court:
The jury found for the defendant. Plaintiff appealed to this court.
A. Todd and Krum & Harding, for appellant.
I....
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...of the creditor to receive payment. 48 C.J., p. 586; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, 17 N.E. 496; Thompson v. Kellogg, 23 Mo. 281; Mercantile-Commerce Bank & Trust Co. v. Meletio, 84 S.W. (2d) 655; Union Biscuit Co. v. Springfield Grocer Co., 143 Mo. App. 300, ......
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Newco Land Co. v. Martin
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