Valle v. M.S. Cerre's Adm'r

• Decision Date: 31 October 1865
• Citation: 36 Mo. 575
• Parties: JOHN B. VALLE et al., Plaintiffs in Error, v. M. S. CERRE'S ADMINISTRATOR, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 575

JOHN B. VALLE et al., Plaintiffs in Error,

v.M. S. CERRE'S ADMINISTRATOR, Defendant in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Circuit Court.

The facts are stated in the opinion of the court.

At the instance of the plaintiffs, the court gave the following declaration of law:

“If the court, sitting as a jury, finds that the plaintiffs wrote the note-- the letter to Titus, dated June 21, 1859” (the letter of credit authorizing Titus to draw for three-fourths of the value of actual shipment), “which was read in evidence--that Titus received this letter prior to 6th August, 1859; that he thereupon shipped to the plaintiffs at St. Louis, on the steamboat Gladiator, the 300 sacks of coffee in the petition mentioned; that the bill of lading read in evidence was taken for said shipment; that thereupon said Titus drew the bill of exchange read in evidence, which he exhibited to Kentzen & Co. with the bill of lading, and the invoice of said coffee read in evidence, and also the said letter of the 21st of June, 1859, and that on the faith of said letter which was shown to them, said actual shipment, and said bill of lading, the said Kentzen & Co. advanced $2,000 on said bill of exchange and took the same in good faith; that the said bill of exchange was drawn in conformity to the authority contained in said letter of the 21st June, 1859, and that the said bill of lading was received by plaintiffs on the 11th August, 1859, then the plaintiffs are entitled to the possession of the coffee and ought to recover in this action.”

Which the court gave, the defendant duly excepting at the time.

The defendant asked the following instructions:

1. The letter of J. B. Valle & Co. to Titus, dated 21st June, 1859, and read in evidence, as the promise to accept is not an unconditional promise to accept the bills drawn by Titus, and the party taking any such bill must at his peril see to the performance of all the conditions prescribed by Valle; if the bill be for more than three-fourths of the value of an actual shipment, no matter what deception is practiced upon the person with whom the bill is negotiated, there is no obligation on Valle & Co. to accept or pay any part of such bill.

2. If the coffee in controversy was worth both in New Orleans and St. Louis, at the time when it was shipped on the Gladiator, less than $5,400, then Valle was not bound by his letter of credit to pay or to accept any bill, or any part of any bill, drawn against the same for more than $4,050.

3. If the court, sitting as a jury, should be of opinion that Valle & Co. were bound by their letter of credit to pay the sum of $2,071.11 which had been advanced by Kentzen & Co. on the draft of $4,200.11, then, the coffee having been taken on attachment at the suit of Thos. L. Clark & Bro. as the property of Titus, the possession of the sheriff was lawful, and Valle cannot take it out of his possession merely to enforce a lien for $2,071.11.

4. That this right of lien of Valle does not authorize him to take possession of the coffee as against the attaching creditor, who is a purchaser for a valuable consideration.

5. That if Valle had a lien of $2,071.11 against the coffee, he should have entered his appearance as a party to the attachment suit of Clark & Bro. v. Titus, setting forth his lien and claiming that so much of the proceeds of the coffee as would reimburse him for the $2,071.11 should be paid over to him, and he cannot recover in this action.

6. That in case of the coffee not being sold, but merely consigned for sale, the general property remained in the consignor Titus till it reached Valle's possession; and that if, before reaching his possession, it was attached by a creditor of Titus, then that general property was vested in the sheriff by the levy, and Valle cannot, by virtue of a special property, recover in this case and take the coffee out of his possession.

All of which instructions the court refused, the defendant duly excepting thereto at the time.

T. T. Gantt, for plaintiff in error.

I. The plaintiffs in error, for Thos. Clark & Bro., are the real parties in interest, and, Cerre was merely their trustee; complain of the refusal of the court below to allow them to be made co-defendants in form.

II. The instructions given assumed as facts several matters which are not facts. Kentzen & Co. did not, on taking the bill, advance $2,000.11 on it; they refused to do this until they should learn that Valle had accepted the bill, and they only receded from this position on the 11th August, 1859, yielding to the importunity of Titus. Valle & Co. allowed this bill of exchange to be protested for non-acceptance on the 15th August, 1859, and for non-payment on the 27th August; they did not get possession of the bill until October, 1859, some two months after this suit was commenced.

The instruction refers to the triers of the fact the ascertainment of the matter of law: “If the court, sitting as a jury, finds that the bill of exchange was drawn in conformity to the authority contained in said letter of 21st June, 1859,” &c. (Butcher v. Death et al., 15 Mo. 271.) It was the duty of the court to say whether it was so drawn, the facts being conceded; or to tell the jury to find that it was so drawn, if certain facts were by them ascertained to be true.

This instruction is otherwise defective and vicious. It gives prominence to the matter of good faith on the part of Kentzen & Co. in the negotiation of the bill of exchange. If the bill was in conformity with the letter of credit, it was already accepted; of this there can be no question either at common law or on our own statute, and therefore the only ground of hesitation must have been that they perceived, or that at least they feared, the conditions of the letter of credit had not been complied with.

The court having failed to interpret the letter of credit in the instruc tion given at the instance of the plaintiffs below, the defendant endeav ored to supply the omission and correct the error thus existing; and to this end the two first instructions were asked. These contained a correct exposition of the law, and should have been given. The letter of Valle dated 21st June, 1859, clearly was not an unconditional promise to pay all bills drawn by Titus, on shipment to his house, but only bills for three-fourths of the value of such shipment. This letter of credit was shown to Kentzen & Co., and they were admonished, by its terms, of the qualified character of Valle's undertaking.

The rule of law in this, as in most cases, is the rule of common sense. The authority to draw bills must be strictly pursued. The person promising to honor bills of a certain description, is not bound by that promise to pay bills of a different description; this is illustrated by repeated decisions on this subject. Titus was, by the letter of credit, authorized to draw bills in conformity with its provisions. These Valle was bound to honor; but he was not bound to accept or to pay, in whole or in part, any bill drawn in disregard of these provisions. (Reed v. Wilkinson, 2 Wash. C. C. 514; Anderson v. Hick, 3 Camp. 179; Storer v. Logan, 9 Mass. 55.) These authorities are in point; they show that, at the time this suit was brought, Valle had no right to the consignment. He had, on the 15th August, 1859, refused to accept the bill drawn on it; on the day after this suit was commenced, he refused to pay it. He had, then, repudiated all claims as consignee, unless by reason of the letter of credit he was already liable as acceptor; he was wholly unconnected with this coffee; for it would be quite as violatory of legal rules as of common sense to allow Valle to repudiate the onus while snatching at the commodum. Qui sentit commodum, sentire debet et onus, is the legal maxim. This matter has been the subject of judicial examination elsewhere; and it has been expressly decided that if a consignee allows a bill drawn on a shipment to be dishonored, he has no right to the possession of the shipment. (Allen v. Williams, 12 Pick. 297; Kinlock v. Craig, 3 Term. 119; Waller et al. v. Ross et al., 2 Wash. C. C. 282; Ryberg et al. v. Snell, 2 Wash. 294.)

Valle & Co. could only assert a right to the possession of the coffee by reason of having made some advance, or incurred some liability, in respect of this very coffee. They had made no such advances; had repudiated all liability in respect of the bill drawn on account of it; and, as has been shown, were not liable in respect of their letter of credit. They had, then, no right of action, and defendant is entitled to judgment for the return of the property. (Mason v. Barff, 2 Barn. & Ald. 33--Judge Bayley's opinion, on the point of the strictness with which an authority to draw bills is to be construed.) If, in any particular disadvantageously to the drawee, the authority be departed from, the drawee is not liable.

It has been stated that Valle & Co. were creditors of Titus, on general account, independent of this coffee, in the sum of ten thousand dollars, or nearly. It is not intended to dispute the legal proposition, that a factor may retain, or has a lien on property in his possession, on account of a general balance.

Glover & Shepley, for defendant in error.

I. The instruction given for the plaintiffs was correct. (1 R. C. 1855, p. 293, §§ 1, 2, 3, 4 & 5.) The letter of June 21, 1859, was an unconditional promise to pay a bill drawn in conformity thereto. The bill drawn was in accordance with the instructions; it does not appear that the $4,200 was more than three-quarters the value of the coffee in New Orleans. It does appear that an invoice of the coffee was delivered to Kentzen & Co., in amount $5,688.18. This sum embraces the amount paid T. L. Clark & Bro., also, drayage and insurance; these several items made up the cost of the coffee to Titus. He represented $5,688.18 as the value against which he drew the bill for $4,200.11. No witness has...