Wheeler v. Barret

• Court: United States State Supreme Court of Missouri
• Writing for the Court: RYLAND
• Citation: 20 Mo. 573
• Parties: WHEELER, Defendant in Error, v. BARRET, Plaintiff in Error.
• Decision Date: 31 March 1855

20 Mo. 573

WHEELER, Defendant in Error,
v.
BARRET, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1855.

1. A executed and delivered his note to B., who was to negotiate the same, and with the proceeds pay a note about to become due from A. to C. B. retained the note until after it purported to be due, and then negotiated the same to an innocent party for value, and converted the proceeds to his own use. A. was relieved against the payment of the note. (Scott, J. dissenting.)

Error to St. Louis Court of Common Pleas.

This was a proceeding instituted by Wheeler to restrain the collection of a note, and to compel the holder to deliver the same up to be cancelled. The facts appear in the opinion of the court.

A. Buckner, for plaintiff in error, insisted that Barber was to be regarded merely as Wheeler's agent for negotiating the note, and so the maxim that, of two innocent parties, he whose act has been the cause of the loss, must bear it, was applicable.

Krum & Harding, for defendant in error.

I. The note, in question, being overdue when it was transferred to Barrett, was taken by him subject to all defences and equities connected with it. (Story on Prom. Notes, § 178; 15 Mo. 399; 3 D. & E. 80; 2 Caines, 369; 5 Pick. 312; 5 N. H. 159.)

II. The rights and liabilities of the parties are not changed by Barber's agency, which ceased when the note to Smith, or at farthest, when the note in question became due.

RYLAND, Judge, delivered the opinion of the court.

From the statement agreed upon by the parties in this case, the question here is, upon whom shall the loss fall, on Wheeler or Barrett? It seems that Wheeler owed Solomon Smith a sum of money, $1200, which was to be paid on the 2nd of June, 1850. The payment was secured by deed of trust on real estate of Wheeler. On the 15th of March, 1850, Wheeler made and delivered to R. Barber his negotiable promissory note for $1,375, payable twelve months after date to R. Barber or order, with six per cent. interest from date. Barber was to have

[20 Mo. 574]

this note discounted, and apply the proceeds thereof to the payment of the note to said Smith, becoming due in June. The payment of this note to Barber, was also secured by deed of trust on the same property on which the deed of trust in favor of Smith had been given. Barber gave to Wheeler the following receipt for this note:

“Received, St. Louis, March 15th, 1850, of Jonathan Wheeler, his note at twelve months, for thirteen hundred and seventy-five dollars, to be negotiated, and the proceeds of said note to be appropriated in payment of a certain note executed by him to Solomon Smith for twelve hundred dollars, secured by deed of trust, and falls due on the 2nd day of June next, as can be seen by referring to the records.

R. BARBER.”

It appears that this note of $1,375 was given alone for the purpose of getting it discounted, in order to pay the note to Smith; that Barber did not pay the note to Smith at maturity, nor did he ever pay it, nor has it been paid; that Barber did not negotiate the said note for $1,375 until some six months...