First National Bank v. Gordon , 45 Mo. App. 293 ( 1891 )

Smith, P. J.

— The petition charges that plaintiff agreed to advance McCoy money with which to buy live stock and in consideration of which McCoy was to make to plaintiff his drafts on the consignee of such live stock bought, in amounts equal to the advancement; that defendants as consignees of McCoy verbally agreed with plaintiff that they would receive all live stock consigned to them by McCoy under his agreement with plaintiff and honor and pay all McCoy’s drafts drawn on them in favor of the plaintiff to the extent of the proceeds realized from the sale of any consignment made by McCoy to them; that afterwards in pursuance of the agreement advancements were made to McCoy by plaintiff and a number of drafts were drawn, and among them was the one sued on for $779.30, which the defendants, although they had in their hands the proceeds of a consignment of live stock purchased by McCoy, with the advancement made by plaintiff for which the draft was given, refused to pay it, etc. The defendants interposed a demurrer which was sustained and judgment rendered, and plaintiff brings the cause here by writ of error.

The only question which we have here to decide is, whether a parol promise to accept a future bill of exchange, in consideration of money to be advanced thereon by the promisee, can sustain an action. This case is not distinguishable from that of Flato v. Mulhall, 4 Mo. App. 476; s. c., 72 Mo. 522, where it was expressly determined that a parol promise to accept a future bill of exchange, if supported by the consideration of money to be advanced thereon by the promisee, is invalid under our statute, Revised Statutes, 1879, sections 533, 535 and 537, and that an action thereon cannot be maintained against the promisor. We think the case just cited is decisive of this. While not so-deciding, I am inclined to think, in an equitable action for money had and received, that the plaintiff could recover against defendants. In that kind of an action plaintiff under the familiar principles of subrogation could be placed in McCoy’s shoes in respect to the proceeds of the sale of the consignment of stock in their hands.

The judgment of the circuit court will be affirmed.

All concur.