Wallace State Bank v. Corn Exchange Bank
| Decision Date | 01 February 1926 |
| Parties | WALLACE STATE BANK, A CORPORATION, APPELLANT, v. CORN EXCHANGE BANK, A CORPORATION, RESPONDENT. |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thomas B Buckner, Judge.
AFFIRMED.
Judgment affirmed.
R. V Nelson and W. D. Bush for appellant.
Hunt C Moore, H. A. Ault, John T. Wayland and Illus M. Lee for respondent.
This is an action to recover the sum of $ 1516.73, the amount of a sight draft drawn by one L. W. Orr upon the firm of Black & Atkinson of Kansas City, Missouri, payable to the Wallace State Bank of Monte Vista, Colorado, through the Corn Exchange Bank of Kansas City, Mo. The cause was tried to the court without the aid of a jury and resulted in a verdict and judgment in favor of plaintiff for the sum of $ 1635.74. A motion for a new trial was sustained by the court without any reason therefor being assigned and from that ruling plaintiff appeals.
The record shows the facts to be that the Wallace State Bank, plaintiff herein, was a banking corporation doing business at Monte Vista, Colo.; that on or about the day of June, 1921, Ralph L. Stitt, active vice president of said bank, was approached by one L. V. Orr who stated he was purchasing a carload of pigs for Black & Atkinson of Kansas City, Mo., and asked Mr. Stitt to honor a draft for the value of the pigs. Mr. Stitt agreed to honor the draft and pay Orr the proceeds thereof if Orr would procure the acceptance of the draft by a Kansas City bank representing Black & Atkinson. On June 18, 1921, the Wallace State Bank received a telegram from the Corn Exchange Bank of Kansas City, Mo., the defendant herein, as follows:
After receipt of said telegram Orr presented to Mr. Stitt certain waybills which he claimed showed the weight of the pigs for the purchase price of which the draft was to be drawn, at the price named in the telegram of acceptance. The draft for $ 1516.73 was drawn and immediately forwarded to the National Bank of Commerce at Kansas City, Mo., for presentation to the Corn Exchange Bank, and the money was paid by plaintiff to Orr. The Corn Exchange Bank refused payment of the draft and it was duly protested, the protest fee amounting to $ 2.50. This suit followed.
The petition alleges the facts substantially as stated above and plaintiff offered proof tending to support the allegations. The answer was a general denial.
It is charged that the trial court erred in sustaining defendant's motion for a new trial. Plaintiff contends the telegram is an unconditional acceptance, while defendant contends that its telegraphic acceptance of the draft was qualified and conditional and that said conditions were not met. The ground for defendant's refusal to pay the draft was that the drawer thereof shipped a carload of hogs averaging 160 pounds, while the telegram of acceptance stipulated "pigs" which defendant claims is a term understood on the market and generally, as meaning young swine weighing not less than 75 pounds nor more than 120 to 135 pounds as the limit.
Defendant offered proof which, by agreement, was considered the evidence of H. C. Black of the firm of Atkinson & Black, for whom the purchase was made. This witness identified telegrams exchanged between Black and Orr relative to the purchase and shipment of the pigs. These telegrams disclose that the stock in question was shipped to Grover, Kans., and that the party to whom the car was consigned refused to accept the shipment because it was a load of fat hogs averaging about 160 pounds, instead of being a load of pigs as stipulated in the telegram of acceptance.
The testimony of this witness was to the effect that the term "pigs" as shown on the live stock market, means a weight averaging 75 to 120 pounds, and not to exceed 135; that swine next above this weight are known as "shoats" and when full grown as "hogs;" that "pigs" as known to the trade are more valuable than hogs, per pound; that the shipment in question was sold to the best advantage, the net proceeds thereof amounting to $ 1136.04, which amount was remitted to plaintiff and acceptance thereof refused; that the consignee at Grover, Kans., knew the animals to be fat hogs and gave that as his reason for refusing to accept them when he had ordered pigs.
As we view the case, the determination of this appeal is based upon the proper construction of the telegram of acceptance. If it is found that the telegram of acceptance is unconditional, then plaintiff's position is correct and plaintiff should recover. On the other hand, if the acceptance, in fact, was conditional, then plaintiff cannot recover unless it can be shown that the conditions thereof have been complied with; Ensign v. Cutlery Co., 195 Mo.App. 584; Ford v. Angelrodt, 37 Mo. 50. The wording of the telegram of acceptance must determine the question as to whether it is an unconditional acceptance or not. Quoting therefrom the words "Will honor draft drawn by L. V. Orr on Black & Atkinson for carload of pigs at eight and quarter cents," we think it impossible to construe this as an unconditional conditional acceptance. Beyond question, the telegram limits the acceptance to (1) one carload, (2) pigs and (3) at 8 1/4 cents. It is not contended that the shipment did not comply with the acceptance in two respects, to-wit, one carload and 8 1/4 cents. This legal controversy, then, is waged around the construction to be placed on the word "pigs." Plaintiff contends that the word "pigs" embraces the term "hogs" and that the shipment of animals averaging 160 pounds was a compliance with the conditions of the acceptance.
Defendant offered in proof certain telegrams that passed between Orr and the firm of Black & Atkinson relative to the kind of pigs desired for the shipment and that Orr so understood the agreement. Note telegram from Orr to Black, June 13, 1921:
"Extreme hundred to hundred-thirty-five average probably hundred twenty-first quality vaccinate last of April."
And on June 17, 1921, Black replied by telegram as...
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