Val Platz Brewing Company v. Inter-State Ice & Cold Storage Company
| Decision Date | 05 February 1912 |
| Citation | 143 S.W. 542,161 Mo.App. 531 |
| Parties | VAL PLATZ BREWING COMPANY, Respondent, v. INTER-STATE ICE & COLD STORAGE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
REVERSED.
Judgment reversed.
William Moore for appellant.
(1) The court erred in refusing the defendant's declaration of law number one. The petition, answer and reply contain absolutely nothing in the nature of a plea of waiver estoppel or innocent purchaser. In order to be available this defense must be pleaded. Trust Co. v. Real Estate Co., 82 Mo.App. 260; Holvesworth v. Shannon, 113 Mo. 524. (2) The court erred in refusing to give the defendant's second declaration of law for the reason that if the instrument sued on was assignable the defendant was entitled to set up any equitable defense which it might have. R. S. 1899, sec. 4488; Langsdown v. Markle, 43 Mo 357; Barber v. Baker, 70 Mo.App. 680. (3) The court erred in refusing the defendant's third declaration of law for the reason that said declaration of law states the law exactly as it is laid down in the laws of Missouri of 1905, page 243, and in R. S. 1909, Sec. 9972. The court further erred in refusing said declaration of law for the reason that by refusing said declaration of law it ignored one of the express and vital conditions of the so-called draft which was, that the receipt attached thereto should be signed in ink. The plaintiff's own testimony showed that it was signed in lead pencil by one of the parties and that the signature had been erased and rewritten and added to and subtracted from several times and that after Beall had gone with the money Rattery changed his signature to make it conform to the wishes of Morris, the saloon keeper. (4) The court erred in refusing the defendant's fourth declaration of law for the reason that by doing so the court indicated by its ruling that even though the plaintiff sued at law he might recover upon equitable grounds without pleading them. (5) The court erred in giving all the declarations of law which it give in behalf of the plaintiff for the reason that said declarations assume that the voucher draft was negotiable and that the defendant Ice Company, the drawee, was bound to accept it if the Brewery bought it in good faith. If this is law, it is a startling departure from what it once was. (6) The court erred in finding the issues for the plaintiff, viewing the plaintiff's position in most favorable light. When it bought this so-called voucher draft it took in effect an assignment of the claim of Rattery and Beall against the defendant Ice Company. That the instrument is absolutely non-negotiable is established by our statutes heretofore quoted and the Federal case of First National Bank of Sioux City v. Cudahy, hereafter cited, and even if we should concede for the sake of argument that the instrument became under certain conditions, a draft upon the Ice Company the plaintiff is not entitled to recover for two reasons: First. The instrument was not signed in ink by persons having authority to do it and secondly the draft was dishonored by the Ice Company. We cannot see how a recovery by the plaintiff, in view of these facts, can be sustained. Bank v. Packing Co., 63 F. 805, 69 F. 782; R. S. 1909, sec. 9972.
Wm. E. Smith and F. V. Kander for respondent.
(1) The court did not err in overruling the defendant's objection to the introduction of testimony under the petition. Packing Co. v. Bank, 69 F. 782; same case, 75 F. 473. (2) The second and third propositions in points and authorities of appellant have no bearing on the question at issue. (3) The fourth point of appellant in his points and authorities undertakes to mislead the court, as the evidence shows conclusively that Rattery and Beall each for himself signed the instrument. Abs., 11, 12, 13, 14, 15, 16, 17, 18, 45, 46. (4) The voucher draft in this suit is a draft and is a synonym of "Bill of Exchange" or "check" and was so used when the company saw fit to indorse on a voucher statement to the effect that when "properly receipted" and on back thereof had printed, "Endorsements should appear below," it should become a draft on the company and such voucher is an accepted bill and not a non-negotiable chose in action. Packing Co. v. Bank, 75 F. 473, C. C. A. 428. (5) The seventh point of appellant in his points and authorities that the instrument was not signed in ink is immaterial as the authorities hold that the signature is sufficient if made with lead pencil. Porter v. Valentine, 41 N.Y.S. 507; Clason v. Bailey, 14 Johns (N. Y.), 484; Brown v. Bank, 41 Am. Dec. 755; Drefahl v. Bank, 132 Iowa 563; 36 Cyc. 448, and note. (6) The contention of appellant that it paid money to save itself from possible liens that might be filed against the building by reason of Rattery and Beall failing to pay for labor performed, cannot be set up as a defense for the reason that if appellant made any such payments they were voluntary. In order to recover, even from Rattery and Beall, liens would have to be established and prosecuted to judgment. Morley v. Carlson, 27 Mo.App. 5; Trippensee v. Braun, 104 Mo.App. 628.
The plaintiffs petition is founded upon the following for recovery:
"Interstate Ice & Cold Storage Co.
Voucher Draft.
Stock Yards Station.
Kansas City, Kansas.
If not correct return without alteration and state differences.
To A. H. Rattery & Geo. Beall.
Address, Kansas City.
To cover payment as follows:
Excavating 401 1-2 cuyds c 20c
$ 80.30
Concrete 193
2.25
434.25
Stone 798 1-2 Perch
80c
638.80
$ 1153.35
75 per cent of above
865.01
Advanced
966.36
$ 298.65
3- -6
$ 150.00
3- 13
375.00
33.36
8.00
Advanced Mar. 19-09
100
$ 398.65
The above covers work to and including Fri. 3-19-09.
Checked
Entered
Date issued 3-20-09
L. L. T.
L. L.
Received from Interstate Ice & Cold Storage Co., $ 398.65, Three hundred ninety-eight and 65-100 dollars in full payment of above account.
Date Mar. 20-09.
Sign here A. H. Rattery & Geo. Beall. When properly receipted this voucher becomes a draft on us payable through Traders National Bank, Kansas City, Mo. Interstate Ice & Cold Storage Co. Per Thos. P. Ruddy.
Across the face of the instrument the Traders National wrote 'Payment Stopped.' On the back thereof appears the following:
Voucher Draft.
Interstate Ice & Cold Storage Co.
Kansas City, Kansas.
No. 621 $ 398.65
Payable to
A H. Rattery and Geo. Beall.
Kansas City.
Charge.
Endorsements should appear below.
A. H. RATTERY and GEO. BEALL.
(Endorsed on margin.)
Notice--Receipt only by those having authority to sign, and in ink. Paying Bank will not accept unless conditions are complied with. No alterations allowed."
The evidence showed that in February, 1909, the defendant company entered into a contract with A. H. Rattery and George Beall by which the latter were to furnish the labor necessary to construct the stone foundation of an ice plant the defendant was erecting in Kansas City, Missouri. Under the terms of the contract Rattery and Beall were to receive seventy-five per cent of the money due them on the contract on Saturday of each week. It appears, however, by some oversight they had overdrawn in excess of said per cent. On the 19th of March, 1909, the books of the company showed that they were entitled to $ 398 and the company issued to them what is called a voucher draft in commercial circles. This voucher draft was given by the company to Beall. Beall took it to the saloon of William Morris and with a lead pencil signed the receipt "Rattery & Bell," and Morris, who was the depository of the plaintiff, gave him $ 398, the amount stated in the...
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