McAllister v. Budd , 33 Mo. 417 ( 1863 )

Bates, Judge,

delivered the opinion of the court.

This suit charges the defendants as drawers of a bill of exchange, as follows:

“ $1303 12. — St. Louis, Dec. 1,1858. Three months from date, pay to the order of Messrs. McAllister & Co. thirteen hundred and three TVo dollars, value received, and charge the same to account of — Geo. K. Budd & Son, Agents. To State Fire and Marino Insurance Co., Harrisburg, Pa.”

The plaintiff was meant by the name McAllister & Co. The bill was accepted by the drawee, but not paid, and was protested for nonpayment, and notice given the defendants.

The defendants answered that they, as the authorized agents of said company, with full authority so to do, drew said bill of exchange as and for the bill of said company; that it was the act of said company by them as its authorized agents, and not in any sense the act of these defendants ; that they received no value, nor any other consideration for said bill. Said bill was made by said company through the agency of these defendants for a debt due from said company to the plaintiff, and was received by him as the bill of said company, drawn by it upon itself, he at the time well knowing and intending that said George K. and Charles P. Budd were not in any way to be held bound for its payment.

At the trial, the defendants gave evidence tending to prove the matters stated in their answer, and asked the court to instruct “ that if the defendants, at the time they drew the draft in question, were acting as the agents of the State Fire and Marine Insurance Company of Pennsylvania; that the said draft was given in settlement of a debt due from said insurance company to McAllister & Co.; that the plaintiff, at the time he took said draft, knew that George K. Budd & Son were the agents of said insurance company; and if the court also finds that the said George K. Budd & Son were authorized to make said draft, then the plaintiff cannot re-' cover in this action.”

The court refused to give that instruction and rendered judgment for the plaintiff.

We think the court below erred. A bill drawn under such circumstances cannot, in the hands of the payee, be understood to have been received by him as negotiable commercial paper, but rather as a certificate from the agents to their principal of the amount due its creditors. (1 Par. on Notes and Bills, 94, and the cases there cited in the notes.)

If the bill had been negotiated, the defendants might have been bound to an innocent holder.

The proper mode of drawing such a bill is to sign the name of the principal by the agent.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.