Turnbull v. Watkins

• Decision Date: 16 May 1876
• Citation: 2 Mo.App. 235
• Parties: ALEXANDER TURNBULL, Respondent, v. FRANCIS WATKINS, Appellant.
• Court: Missouri Court of Appeals

2 Mo.App. 235

ALEXANDER TURNBULL, Respondent,

v.FRANCIS WATKINS, Appellant.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

1. T. accepted bills of exchange in W.'s favor, for which W., by a contemporaneous written agreement, promised to advance a certain sum to T., through the latter's agent. W. advanced only part of the money promised; but T., being induced to believe that all had been advanced to his agent, caused the bills to be paid in full. Held, in a suit by T. for the balance not advanced by W., and for damages, that although fraud was charged against W. in collecting the whole amount of the bills, yet the action was based on the written contract, and was, therefore, not barred by the statutory limitation of five years.

2. No assignment from an agent is necessary to enable the principal to sue upon a contract made for his benefit by the agent.

3. Where the parties, in a settlement, have agreed upon the value in United States currency of a certain sum in foreign money, no further evidence is necessary to enable the jury to make a like estimate, in readjusting the settlement to the rights of the parties, and in ascertaining what amount was overpaid.

4. When the statute of limitations is pleaded against a set-off or counterclaim, the time must be computed from the commencement of the suit, and not from the filing of the answer.

5. A jury cannot properly allow interest from a date prior to that from which the party claims it in his pleading.

APPEAL from St. Louis Circuit Court.

Reversed and judgment.

Hitchcock, Lubke & Player, for appellant, cited: Wag. Stat. 918, sec. 10, p. 1013, sec. 3; Bush v. Baldry, 11 Allen, 369; Hixon v. Hixon, 7 Humph. 33; Ord v. Ruspine, 2 Esp. 569; Walker v. Clemens, 9 Eng. Law & Eq. 332; Gordon v. Bruner, 49 Mo. 570; Ackley v. Staehlin, 54 Mo. 558; Wag. Stat. 1015, 1016, 1273, secs. 12, 13, 1.

Cline, Jamison & Day, for respondent, cited: Whittlesey's Pr. 26, 27.

LEWIS, J., delivered the opinion of the court.

The petition sets forth, in effect, that Tal. P. Shaffner drew on plaintiff three bills of exchange, all dated at London, England, on February 22, 1864; one at four months, for £600, one at eight months, for £625, and one at twelve months, for £>>> 650; that all were duly accepted by plaintiff, and were indorsed and delivered by Shaffner to the defendant; that the entire transaction was for plaintiff's benefit, as a means of raising money to be advanced by defendant, and was negotiated and perfected through Shaffner as plaintiff's agent; that defendant at the time executed and delivered to Shaffner a receipt and agreement, in writing, which, after describing the bills of exchange, etc., proceeded thus:

“The understanding being that I am to use the second to repay the first, and the third to repay the second, making the whole indebtedness in the transaction by the bills the sum of £650, the last note or bill, which is secured by mortgage on certain real property in the city of St. Louis, State of Missouri; and on this latter bill I this day advance the sum of two hundred pounds sterling (£200), and the remainder of the proceeds of the first bill, as per bank discount, is to be paid the said Shaffner on the return of information from St. Louis that the said mortgage is correct and bona fide, as therein stated.

F. WATKINS.”

The petition further states that, although the defendant “received and accepted such mortgage as being correct and bona fide, yet, aside from another sum of £100 paid to said Shaffner on June 21, 1864, making £300 in all, the defendant has never paid anything more, either to this plaintiff or said Shaffner, on account of said bills of exchange;” that, after the maturity of the said last bill, the plaintiff, being in entire ignorance of the fact that only part of the required advance had been paid to Shaffner by defendant, and being importuned for payment of the bill by defendant, who well knew of plaintiff's said ignorance, and who falsely and fraudulently represented that the whole amount of the bill was due to him, directed C. C. Whittelsey, his agent in St. Louis, to sell certain real estate of plaintiff's and pay off said bill; that Whittelsey thereupon sold said real estate at a great sacrifice, and, on October 3, 1865, paid to the defendant, from the proceeds, the sum of $4,710.05, which appeared to be then due on the bill, including interest and the existing premium on gold; that said sum was in fact $2,173.86 more, for the reasons already stated, than the defendant was entitled to receive; that defendant, through all the transactions, knew that Shaffner was plaintiff's agent merely, and had no ownership or other interest in said bills of exchange or their proceeds; that the knowledge of defendant's deceitful practices, etc., first came to the knowledge of plaintiff within five years prior to the institution of this suit. Judgment is prayed for the said sum of $2,173.86, with interest from October 3, 1865.

The answer, after general denials, alleges that defendant purchased the bills from Shaffner, who represented himself as their holder, for value, and advanced to him thereon various sums, amounting to £420; that the mortgage mentioned in the receipt was found to be worthless, and that defendant was compelled to expend divers large sums of money in and about the procuring of a proper conveyance, relieving the property of prior incumbrances, and other charges which should have been borne by plaintiff, amounting to the sum of $2,543.05. An itemized account of these expenditures is filed with the answer, and is presented as a counter-claim, upon which defendant prays judgment against the plaintiff for the said sum of $2,543.05. The statutory limitation of five years is also specially pleaded against the plaintiff's claim.

Plaintiff's reply denies the new matter set up in the answer, and pleads the statutory limitation of five years against the counter-claim. The suit was commenced on March 14, 1873. Defendant's answer was filed February, 9, 1874.

The testimony on either side tended generally to sustain the allegations of the parties respectively, involving, of course, many conflicting statements. Mr. Whittelsey testified that, as plaintiff's agent, he sold the real estate in St. Louis, and defendant was the purchaser at a reduced...