Nichols v. Commercial Bank

Smith, P. J.

This is an action brought by plaintiff against the defendant, a corporate bank, to recover damages.

The cause was submitted to the court upon an agreed statement of facts, the substance of which was: First. That the plaintiff, a farmer residing near Burlington Junction, entered into a parol contract with one, Logan, whereby the plaintiff was to sell and deliver to the latter at the farm of the former certain cattle at a price to be agreed upon, the cattle to be delivered and the purchase money paid by a check on defendant bank. The cattle were to be shipped to Perry Bros., at Omaha. Second. Logan was known to both plaintiff and defendant to be insolvent. Third. On the day before the cattle were to be delivered, the plaintiff desiring to know whether the check of Logan for the value of the cattle would be paid by the defendant bank, went to the town of Burlington Junction, and there met the assistant cashier of defendant bank on the street before banking hours, and there stated to him the contract which he had entered into with Logan, and there inquired of said assistant cashier if said Logan’s check on his bank for an amount that would cover the value (then not known) of two car loads of cattle, would be good and accepted by his bank; and said assistant cashier answered that Logan had been drawing drafts on Perry Bros., payable to his bank, and Perry Bros, had always promptly honored said drafts, and his bank had been paying Logan’s cheeks on it drawn against said drafts, and that in this instance he had no doubt but that Logan’s check on his bank for the cattle would be good and that his bank would pay it; that Logan had no funds himself, but that if he would make a draft in favor of his bank on Perry Bros, for the amount the cattle would bring, there was no doubt that Perry Bros. *88 would pay the same, and that he thought there was no risk in the plaintiff’s accepting Logan’s check for the cattle; — in fact his bank would have paid the check without waiting to hear from the draft. Fourth. That relying on the statement of, defendant bank’s assistant cashier, and believing the same to be true that Logan’s check on the defendant bank would be paid by it, the plaintiff wfes thereby induced to deliver his cattle to Logan, and to accept in payment thereof his check on the defendant bank for the sum of $2,129.65, and the said Logan thereupon received the cattle and shipped them to Perry Bros, at Omaha. Fifth. That on the day following the delivery of the cattle and the acceptance of the check by plaintiff, Logan drew a draft in favor of defendant bank on Perry Bros, for an amount covering the purchase price of the plaintiff’s cattle, and delivered said draft to the defendant bank; that shortly thereafter, on the same day, the plaintiff indorsed and mailed Logan’s check to a bank in a neighboring town where plaintiff owed money, and directed that bank to collect the check in the usual course of business and place the amount thereof to his credit; but fearing this course might not be without risk, and within time to have withdrawn his letter from the mail, he went to the defendant bank and told the assistant cashier what he had done, and asked him if that course would be safe and all right. He answered that it was all right ancl the check would he paid. Neither the draft or cheek was ever paid, nor has the purchase money fbr the cattle been received by plaintiff.

The court rendered judgment for plaintiff for $2,207.71, and the quéstion which we are required by by the defendant’s appeal to determine is, whether the court applied the law arising on the undisputed facts and rendered thereon the judgment of the law.

*89 Turning to the plaintiff’s petition we find it charges the breach of a parol promise of the defendant bank, made through its assistant cashier, to pay a certain check thereafter to be drawn on it. It further charges that by reason of such promise of defendant’s cashier, the plaintiff was induced to sell certain cattle to one Logan and receive in payment thereof said check which the defendant had refused to pay, whereby plaintiff is damaged by the loss of said cattle in the sum of $2,129.65. It is seen that, according to this exposition of the petition, the action is ex contractu. There is no allegation of fraud or deceit. Peers v. Davis, 29 Mo. 184 ; Walker v. Martin, 8 Mo. App. 560 .

Recurring to the agreed statement of facts it will be found that the defendant’s cashier did not make an explicit, unconditional promise to pay Logan’s check. In the language used by defendant’s cashier, there is nothing expressed beyond his opinion or conviction. He stated to plaintiff that Logan had no funds himself, but that if he would make a draft in favor of the bank on Perry Bros, for the amount the cattle would bring, there was no doubt, but that Perry Bros, would honor the same, and that he thought there was no risk in the plaintiff accepting Logan’s check for the cattle. In fact the bank would have paid the check without waiting to hear from the draft. In the last sentence of the foregoing quotation, the words “he thought” are implied after the words “in fact,'” so that the sentence thus construed would read: “In fact ‘he thought’ the bank would have- paid the check without waiting to hear from the draft.” It will be seen that this interpellation is not only authorized by ■ the words of the quotation which precede it, but that they are necessary to convey the full meaning intended to be expressed by the person who spoke them. Nor does the language used by the defendant’s assistant *90 cashier during his conversation with plaintiff on the day after the check had been received by plaintiff express more than an opinion that plaintiff7s course would be safe and all right, and that the check zvould be paid. There is nothing from the beginning to the end in any representation or assurance of defendant’s assistant cashier that goes further than the mere expression of an opinion that, in the event that certain transactions were had, that the bank would pay the check. This we think to be the full import and meaning of the language employed by defendant’s assistant cashier.

It nowhere is made to appear that the plaintiff was induced to receive of Logan his check in payment for the cattle upon the faith of an unconditional promise of defendant’s assistant cashier that it would pay such check. The cattle were not sold and delivered to Logan in pursuance of any request or direction of defendant’s assistant cashier, or under any promise, if plaintiff would or should do so, that the defendant would pay him the purchase price thereof, so that there is no original promise that would bind the defendant. And since the bank had no funds of Logan, to certify his check would have been but a promise to pay the debt-of another, and void under the statute if not made in writing. If the defendant’s assistant cashier made-any unconditional promise at all to pay Logan’s check for plaintiff’s cattle, it was, in its very nature, collateral, and, not being in writing, was within the statute of frauds.

But, assuming that the defendant’s assistant cashier before or after the sale and delivery of the cattle made a parol promise to pay or accept an existing or nonexisting check of Logan’s, still no action can be maintained for a breach of such promise, because not-permitted by the statute. Revised Statutes, secs. 719, 720.

*91 We omitted to state at the proper place that the check in question was postdated, and such being the case, it was to all intents and purposes an inland bill of exchange (Randolph on Commercial Paper, secs. 80, 568; Bank v. Carter, 88 Tenn. 279 ), and no action could be maintained on a promise to accept the same, unless it was in writing. Lee v. Porter, 18 Mo. App. 377 ; Flato v. Mulhall, 72 Mo. 522 .

Nor does section 723, Revised Statutes, help the plaintiff, because he was not the drawer of the check, nor was he otherwise within its provisions. Brinkman v. Hunter, 73 Mo. 172 ; Flato v. Mulhall, supra; Blackiston v. Dudley, 5 Duer. 373; Bank v. Bank, 30 Mo. App. 271 .

But it is insisted that the action can be maintained upon the theory of an estoppel in pais. It is quite difficult to understand how this can be so, as it is not perceived that there exists in the case the groundwork of an estoppel. If the parol promise of the defendant’s assistant cashier was void in law, this the plaintiff must be presumed to have known, and therefore he had no right to rely upon the same. If he did, he must accept the consequences of his own imprudence. He cannot invoke the doctrine of an estoppel to validate a promise which the statute declares absolutely void.- The rule is, that no one can be estopped by an act that is illegal and void, and an estoppel can only operate in favor of a party injured in a case where there is no provision of law forbidding the party against whom the estoppel is to operate from doing the act which is sought to be carried out through its operation. 2 Herman on Estoppel, 922.

This seems to be a case of great hardship on the plaintiff, and we regret that we are unable to find any principle of law applicable to the facts which justifies us in upholding the judgment. It follows that the judgment must be reversed.

All concur.