Wheeler v. Barret

Decision Date31 March 1855
Citation20 Mo. 573
PartiesWHEELER, Defendant in Error, v. BARRET, Plaintiff in Error.
CourtMissouri Supreme Court

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 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 after it purported to be due; that is, some time in September, 1851; that he then endorsed the note and delivered the deed of trust to Barret, who took the same in good faith, without knowing the facts relative to the making thereof, for a valuable consideration; that the plaintiff, Wheeler, had no knowledge of this assignment to Barret, nor had he any advantage therefrom; that Barber is dead, and his estate insolvent.

This is a proceeding by Wheeler to have the collection of this $1,375 note enjoined, the note canceled, and the deed of trust removed from his property, and for general relief.

Upon the agreed case, the court below declared the law for the plaintiff, and decreed that Barret, be perpetually enjoined from negotiating and transferring the said $1,375 note, and that he and all persons be enjoined from attempting, by action at law or otherwise to collect the same, and that defendant deliver up the note for cancellation, etc.

1. Now, upon whom shall this loss fall? The note being overdue when Barret got it from Barber was, of itself, a sufficient fact to make Barret inquire and ascertain the reason of its dishonor, and although the agreed case shows that he took it in good faith and for value, yet he must stand and can only stand in Barber's place. He...

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16 cases
  • Dowling v. Grand Avenue Bank of St. Louis, a Corp.
    • United States
    • Court of Appeal of Missouri (US)
    • December 2, 1924
    ...... decree declaring said notes and deed of trust fully paid and. extinguished. [Bacon v. Reichardt, 208 S.W. 24;. Wheeler v. Barret, 20 Mo. 573; Kellogg v. Schnaake, 56 Mo. 138; Henley v. Holzer, 19. Mo.App. 245, l. c. 248; Murphy v. Simpson, 42. Mo.App. 654, l. c. ......
  • Fifty-Third National Bank of Cincinnati v. McCrory
    • United States
    • Court of Appeals of Kansas
    • June 3, 1912
    ...Fine notes, and, this would be true even though appellant knew nothing of the credits to which respondents were entitled thereon. Wheeler v. Barrett, 20 Mo. 573; Mattoon McDaniel, 34 Mo. 140; Arnot v. Woodburn, 35 Mo. 99; Cutler v. Cook, 77 Mo. 388; Barnes v. Mullins, 78 Mo. 269; Henley v. ......
  • Franklin Bank v. St. Louis Car Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 6, 1928
    ...rights attaching to the note itself. [Barnes v. McMullin, 78 Mo. 260; Cutler v. Cook, 77 Mo. 388; Emerson v. Crocker, 5 N.H. 159; Wheeler v. Barrett, 20 Mo. 573.] It is laid down as a rule in Daniels on Negotiable Instruments, secs. 724, 724a, that `negotiable paper, whether made for accomm......
  • Franklin Bank v. St. Louis Car Co.
    • United States
    • United States State Supreme Court of Missouri
    • October 6, 1928
    ......[ Barnes v. McMullin, 78 Mo. 260; Cutler v. Cook, 77 Mo. 388; Emerson v. Crocker, 5 N.H. 159; Wheeler v. Barrett, 20 Mo. 573.] It is laid down as a rule in. Daniels on Negotiable Instruments, secs. 724, 724a, that. 'negotiable paper, whether made ......
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