State Bank v. American Hardwood Lumber Co. , 121 Mo. App. 324 ( 1906 )

BLAND, P. J.

(after stating the facts). — 1. The first contention of defendant is, the court erred in admitting the draft in evidence. The draft was described in the petition as payable to plaintiff bank. It showed on its face that it was payable to “Prank D. Peet, cashier.” In all other particulars it corresponded to the description set out in the petition. Now it is a well-settled rule of practice, that a party cannot sue on one cause of action and recover upon another. [Weil v. Posten, 77 Mo. 284; Sumner v. Rogers, 90 Mo. 325, 2 S. W. 476; Gurley v. Railway, 93 Mo. 445, 6 S. W. 218; Reed v. Bott, 100 Mo. 62, 12 S. W. 347, 14 S. W. 1049; Huston v. Tyler, 140 Mo. l. c. 264, 36 S. W. 654, 41 S. W. 795; Whipple v. Peter Cooper Building & Loan Assn., 55 Mo. App. 554; Mason v. Railway, 75 Mo. App. 1. ] But a mere variance between the proof and the allegations of the petition is not of itself sufficient to defeat a recovery. The rule is well stated by Wagner, J. , in Jones v. Louderinan, 39 Mo. l. c. 290, thus:

“The code of practice has not changed the well-known rule of evidence as it existed at common law, that the allegations and the proofs must substantially correspond. A party cannot declare for one cause of action and recover on an entirely different and distinct cause. If there is a variance in the evidence, he should amend his pleadings so as to make them conform to the truth, else the objection will be fatal.”

And the variance is.not material, unless it actually misleads the opposite party to his prejudice. [Section 655, R. S. 1899.] The variance between the petition and draft was only an apparent one and was explained away by the evidence of Peet, the cashier, who testified that he was cashier of plaintiff bank, and in taking the draft was acting as its cashier and agent.

In Baldwin v. Bank of Newbury, 68 U. S. 234, the action was on the following promissory note:

“3,500. Boston, Dec. 9, 1853.

“Five months after date I promise to pay to the order of O. C. Hale, Esq., cashier, thirty-five hundred dollars, payable at either bank in Boston, value received. J. W. Baldwin.”

Hale testified that he was cashier of the plaintiff bank and in taking the note was acting as cashier and agent of plaintiff. It was held the evidence was competent and that the suit was properly brought in the name of the bank.

In Commercial Bank v. Franch, 21 Pick. 486, it was held that where a promissory note was made payable to the cashier of the Commercial Bank, or his order, and the consideration proceeded from the bank, an action on the note might be maintained in the name of the bank as promisee. At pages 490-1, the court said:

“A corporation being an incorporeal being and having no existence but in law, can neither make nor accept contracts, receive nor pay out money, but by the agency of its officers. They are the hands of the corporation by which they execute their contracts, and receive and make payments. Of these officers the cashier is the principal. If the note had been made to the corporation, by its appropriate name, the same officer would have demanded and received payment, or would have given notice of non-payment and protested it, and, had it been negotiated, would have made the indorsement, and in precisely the same form as he would upon this note. . . .

“The principle is, that the promise mnst be understood according to the intention of the parties. If in truth it be an undertaking to the corporation, whether a right or a Avrong name,' whether the name of the corporation or of some of its officers be used, it should be declared on and treated as a promise to the corporation.” In Eastern Railroad Co. v. Benedict, 5 Gray 561, the same ruling was made on a similar state of facts.

On the evidence of Peet, Ave think it is clear the action was properly in the name of the bank, who was the real party in interest and from whom the consideration moved for the draft, and Ave think, also, the amendment of the petition after the cause had been submitted, but before final judgment, was proper.

2. The second contention of defendant is that its peremptory instruction for nonsuit should have been given for the reason the loAva Falls Manufacturing Company, by adding “with exchange” to the amount of the draft, exceeded the authority conferred upon it by defendant’s letter of April 27th. Section 445, R. S. 1899, provides as follows:

“An unconditional promise, in writing, to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person to AAdiom such written promise shall have been ShoAvn, and who, upon the faith thereof, shall have received the bill for a valuable consideration.”

Under this section there was an actual acceptance of the draft, if it corresponded in amount to the sum authorized by the letter, as it is not claimed that it Avas not draAvn within a reasonable time or that the letter did not sufficiently describe the bill to be drawn, or that it does not correspond in all other respects with the one authorized to be drawn.

In Lindler v. Bank, 76 Iowa 692, the facts were, George Barro sent a telegram from Los Angeles, California, to* defendant, directing it to transmit two thousand dollars by telegraph to plaintiff at Los Angeles and charge the amount to his account, he having at the time a large amount with the defendant bank. On the next day defendant telegraphed plaintiff that the barde would pay Barro’s draft on it for two thousand dollars. Barro* drew his draft for two thousand dollars with exchange on New York. It was subsequently presented, but defendant refused to accept or pay it. The exchange amounted to two dollars. The court, at pages 631-2 said:

“If a bill is drawn corresponding in terms with his offer, and is received by another in reliance on the offer, he will be liable from the time as an acceptor. But the bill drawn must correspond in terms with his offer, or no such result will follow. His liability, if any, is created by his contract, and it is impossible that he should be bound by conditions or stipulations to which he never gave his consent. Judged by this rule, it is manifest that defendant is not liable. Its offer was to pay a specified sum on the draft of Barro*. The offer implied, of course, that the payment was to be made at Waterloo, that being its place of business. But the draft required either that the money should be paid in New York, or that an additional amount should be paid to cover the exchange. In effect, it was a draft for $2,002, while defendant’s promise was to pay one for two thousand dollars.”

In Ulster County Bank v. McFarlan, 5 Hill (N. Y.) 432, “M. drew a letter of credit, to continue in force one year, in these words: ‘I authorize you to draw on me at ninety days from time to time for such amounts as you may require, provided that the whole amount running and unpaid shall not exceed $3,000.’ Held, that the latter clause did not limit the aggregate amount of bills to be drawn during the year, but only the amount which it was allowable to have outstanding at any single period.

“Held also>, that the authority conferred by the letter was limited to bills drawn payable ninety days after sight, and did not extend to such as were drawn at ninety days after date.”

In Brinkman v. Hunter, 73 Mo. 172, it was held that a promise in writing to pay a draft to be drawn for six hundred and eight dollars and ninety-two cents was a promise to pay that sum and no more, and that the promisor was not bound to accept the payment of said sum on a draft drawn on him for six hundred and eighty dollars and ninety-two cents, or in other words, to submit to a partial acceptance or payment.

The evidence in this case shows that the draft for seven hundred and thirty-five dollars and twenty-eight cents, mentioned in the letter of April 27th, was returned therewith to the Iowa Falls Manufacturing Company was for seven hundred and thirty-five dollars and twenty-eight cents “with exchange.” This draft, as the letter shows, was returned, not because exchange was added, but for the reason the draft was drawn for five dollars in excess of what defendant claimed was due the Iowa Falls Manufacturing Company. Hence, the letter is tantamount to a written promise to the Iowa Falls Manufacturing Company to accept a duplicate of this draft, provided five dollars be taken off its face. Defendant knew from its previous course of dealing with the Iowa Falls Manufacturing Company that the draft, if drawn, would be discounted by the plaintiff and forwarded to St. Louis for collection, and that the exchange charges would accrue which it in honor and justice ought to pay. The evidence of defendant’s secretary, to whom the draft was presented for payment, also shows that he did not refuse payment for the reason exchange was added, but for the reason the Iowa Falls Manufacturing-Company had failed to pay a debt it owed defendant. The written proanise to accept the draft should be construed in the light of these circumstances, and when so construed we think the written promise of defendant was' to accept the draft for seven hundred and thirty dollars and twenty-eight cents “with exchange.”

3. The third contention is that the judgment is excessive in that ten per cent of the principal sum was awarded as damages on account of the failure of defendant to accept or pay the draft and for suffering it to go to protest. Section 449, Revised Statutes 1899, expressly provides for an allowance of ten per cent damages on any note or bill drawn out of this State on any person within this State which shall on due presentation for acceptance or payment he protested for nonacceptance or non-payment.

The judgment is clearly for the right party and is affirmed.

All concur.