Utley v. Tolfree

• Decision Date: 30 April 1883
• Citation: 77 Mo. 307
• Parties: UTLEY v. TOLFREE et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 307

UTLEY

v.TOLFREE et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Polk Circuit Court.--HON. R. W. FYAN, Judge.

AFFIRMED.

J. B. Upton and J. D. Abbe for appellants.

T. G. Rechow and O. D. Knox for respondents.

HENRY, J.

Plaintiff sued defendants for $360, which, in his petition, he alleges was, on the 30th of April, 1875, deposited by W. N. Mitchell in defendants' bank to be paid, and which defendants then agreed to pay, to plaintiff, whenever he should demand it, which he did on the 3rd day of June thereafter, and defendants refused payment thereof. The answer denied the allegations of the petition, and also alleged that on the 30th of April, 1875, said Mitchell deposited with them $567.20, and requested them to pay $360 of the amount to plaintiff, which they promised to do, on condition that, within ten days thereafter. Mitchell should deposit with them an amount sufficient to cover his indebtedness to the bank, on a running account with the bank and notes held against him; that this he failed to do, and soon after that date failed and made an assignment, and that plaintiff did not demand said sum of $360 until after said assignment. The replication denied the special matter. There was a trial, which resulted in a verdict and judgment for plaintiff, from which defendants have appealed.

After the evidence had all been introduced on both sides, the plaintiff, on leave of court, filed an amended petition which, however, did not contain anything material not embraced in the original petition, and we are unable to see why it was filed. Appellants' counsel contend that it states a different cause of action; that the original petition claimed that the money was deposited to plaintiff's credit in the bank, while the amended petition alleged no deposit to his credit, but a request on the part of Mitchell, and a promise by defendants, to pay the sum of money to Utley. The amended petition states: “That on the 30th day of April, 1875, W. N. Mitchell left, or deposited with defendants, the sum of $360 to be by them paid to plaintiff, to whom Mitchell was indebted to that amount, and that defendants then agreed to pay the same to plaintiff.” The original states the same facts substantially, the only noticeable difference being that the word “left” does not appear in the original petition. Whether deposited in the bank to plaintiff's credit or left with the defendants, (private bankers,) to be paid to plaintiff, makes no difference in his right to the fund. If deposited to his credit, he had the absolute right to the money, and if received by defendants on their promise to pay it to plaintiff, the obligation of defendants to pay it to him was complete. The same cause of action alleged in the amended petition was tried on the original petition and answer, and both sides were heard upon all the issues that could have been joined on the amended petition, and defendants were not prejudiced by having no opportunity to answer the amended petition.

The defendants were summoned as garnishees in a suit instituted by a...