Wiener v. The National Bank of Commerce in St. Louis, a Corp.
| Decision Date | 13 June 1924 |
| Citation | 263 S.W. 485,214 Mo.App. 691 |
| Parties | MORRIS WIENER, Respondent, v. THE NATIONAL BANK OF COMMERCE IN ST. LOUIS, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Rehearing Denied 214 Mo.App. 691 at 699.
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.
AFFIRMED.
Judgment affirmed.
D'Arcy & Neun for appellant.
(1) A written instrument is open to explanation by parol of extrinsic evidence when it is expressed in short and incomplete terms or is fairly susceptible of two constructions, or where the language employed is vague uncertain, obscure or ambiguous. 22 C. J. 1174, notes 42, 43 and 44; Amonett v. Montague, 63 Mo. 201; Interior Linseed Co. v. Becker-Moore Paint Co., 273 Mo. 433, 202 S.W. 566; Phillips v. Barnes, 105 Mo.App. 421; 22 C. J. 1207, notes 13 and 14. (2) Where the meaning of the parties is uncertain from the words used and it is not within the power of the court to ascertain their meaning by reference to the body of the instrument, evidence of the acts of the parties contemporaneous with and immediately prior to the execution of the instrument may properly be considered. 22 C. J., p. 1179, note 57; Coffman v. Saline Valley Railroad Co., 183 Mo.App. 622, 167 S.W. 1053; Gusmann v. Trish, 163 Mo.App. 308; Bernero v. McFarland R. E. Co., 134 Mo.App. 290, 114 S.W. 531. (3) Where a writing is deficient in punctuation and the sense may be varied as the punctuation is one way or the other, evidence may be introduced to explain its meaning. Graham v. Hamilton, 27 N.C. 428. (4) The conversation and statements of the parties at the time of or just previous to the execution of the contract between them may be admissible for the purpose of aiding in the construction of the writing. 22 C. J., p. 1180, note 60; Sharp v. Sturgeon, 66 Mo.App. 191. (5) Parol or extrinsic evidence of the intention of the parties may be received to clear up ambiguity by reason of which such intention is not definitely expressed. 22 C. J., p. 1182, note 73; Hartley v. Werner, Mo.App. , 196 S.W. 1072; Watkins v. Donnell, Mo. App., , 179 S.W. 980; Morey v. Feltz, 187 Mo. 650, 173 S.W. 82. (6) In order to correctly ascertain the intention of the parties to a contract and properly interpret the same, it is competent to inquire into the purposes for which the writing was executed and to this end parol evidence is admissible. 22 C. J., note 86; Philibert v. Burch, 4 Mo.App. 470; Campbell v. Hayden, 181 Mo.App. 681, 168 S.W. 363. (7) Where any doubt arises as to the true sense and meaning of the words themselves, or any difficulty as to their application, under the surrounding circumstances the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. In such a case parol evidence is admissible ex necessitate. 22 C. J., note 46; Buster Brown Co. v. North Mehornay Furniture Co., 140 Mo.App. 707; Ideal Pump Company v. American Central Insurance Co., 152 S.W. 408; Viernow v. Carthage, 139 Mo.App. 276. (8) Where a written instrument contains words or expressions which are of a technical nature, being connected with some art, science or occupation, and unintelligible to the common reader yet susceptible of a definite interpretation by experts, parol evidence is admitted for the purpose of explaining the language used and thus effectuating the intention of the parties through the medium of their own language. 22 C. J. 1203, note 16. (9) While words in a contract relating to the ordinary transactions of life are to be construed according to their plain, ordinary and popular meaning, yet, if in reference to the subject-matter of the contract, particular words and expressions have by usage acquired a meaning different from their plain, ordinary and popular meaning, those words in such a contract must be taken to have been used in their peculiar sense, and that sense might be fixed by parol evidence. 17 C. J. 498, note 8; Sno-Qualmi Realty Co. v. Moynihan, 179 Mo. 629; Riley-Wilson Grocer Co. v. Seymour, 129 Mo.App. 325. (10) Evidence of custom is admissible to explain the meaning of a receipt given by a bank for the transmission of funds to a foreign country. Kurtzeborn v. Liberty Bank, 253 S.W. 103. (11) The established usage of a bank is binding on persons dealing with it whether they have actual knowledge thereof or not, particularly where it has been so long established that its customers may well be presumed to have known of it, or where it is a general custom among the banks of the place. 17 C. J., p. 464, notes 32, 33, 34 and 35; Adams v. Otterback, 15 How. (U.S.) 539, 14 L.Ed. 805; Yeaton v. Alexandria Bank, 5 Cranch. (U.S.) 49, 3 L.Ed. 33; Columbia Bank v. Fitzhugh, 1 Harr. & G. 239; Raborg v. Columbia Bank, 1 Harr. & G. 231; Jackson v. Union Bank, 6 Harr. & J. 146; Jefferson County Sav. Bank v. Commercial Nat'l Bank, 87 Tenn. 350; Lloyds Bank v. Swiss Bankverein, 108 L. T. Rep. (N. S.) 143.
Frumberg & Russell for respondent.
This is an action brought by plaintiff against defendant, for $ 920, money had and received.
The petition alleges that the defendant received of plaintiff on July 21, 1917, $ 450, and $ 25 per month thereafter until $ 920 had been paid.
Defendant in its answer stated that, on July 21, 1917, "plaintiff purchased from defendant 4000 rubles, on which he made a part payment of $ 450 on that day and agreed to pay the balance of the purchase price in monthly payments of not less than $ 25 each on the 10th day of each month, and defendant agreed to issue to plaintiff its check on Petrograd for said 4000 rubles when paid for by plaintiff as above stated."
The answer further alleges that defendant, shortly after the twenty-first of July, 1917, in order to put itself in a position to issue said check, purchased 4000 rubles for the account of plaintiff, and still holds said rubles for plaintiff.
The answer then pleads the custom in dealing with exchange in Russia, and that such custom is to promptly purchase the amount of rubles, and when a draft or check is issued on a Russian bank for the American bank issuing the check, a letter is mailed to the Russian bank on which the check is drawn, called a letter of advice, and that no Russian bank will pay any check so drawn on it unless it receives this letter of advice from the American Bank; that all mail service and communication between the United States and Russia was suspended and discontinued about December, 1917, and has never been resumed, making it impossible for the defendant to communicate with or forward letters of advice to any bank in Russia; that when plaintiff had completed his payments on November 8, 1918, he demanded from defendant a check on Petrograd for 4000 rubles, but defendant refused to issue the check because it could not get a letter of advice to Russia. The bank offered to deliver to plaintiff the 4000 rubles, but plaintiff refused to accept same.
The reply denied that plaintiff purchased any rubles from defendant, but that defendant agreed to issue to him its check for 4000 rubles when paid for by plaintiff. There are other denials and admissions in the reply which it is unnecessary to set out.
At the conclusion of all the evidence the court gave a peremptory instruction to find for plaintiff for the amount of $ 920, together with interest from the date of demand, and defendant appeals.
The sole objection urged by the defendant in this court as a ground for reversal, although stated in different ways, is that the court erred in not permitting the defendant to show the custom existing and necessary to determine the manner of transmitting money to foreign countries, and to explain the meaning of this contract as well as the intent of the parties thereto at the time of its execution.
At the time plaintiff paid to defendant the first $ 450, he received from defendant the following receipt:
"No.... "St. Louis, Mo., 7/21 1917
Received from Morris Wiener
2905 Dixon Street
$ 450--for part payment on Ro. 4000--
Check on Petrograd @ 23
Balance of $ 470--to be paid in monthly payments of not less than $ 25. each on the 10th of each month.
THE NATIONAL BANK OF COMMERCE IN ST. LOUIS
PER E. OPPENHEIMER."
It appears from the testimony of plaintiff that he went to the defendant bank for the purpose of buying rubles, and defendant agreed to sell him the same. He went to the exchange department of the defendant bank, and had a conversation with Mr. Oppenheimer who was in charge of that department. This occurred on the twenty-first of July, 1917. At that time he made the initial...
To continue reading
Request your trial