Union Biscuit Co. v. Springfield Grocer Co.

NIXON, P. J. In this case, tbe defendant having pleaded payment of plaintiff’s account, under tbe rules of pleading, tbe burden was upon defendant to prove payment. [Yarnell v. Anderson, 14 Mo. 432; Griffith v. Creighton, 61 Mo. App. 1.] [306] The word “payment,” in its legal sense, has a well-defined meaning. In order to constitute payment, as that word is used in law, there must be (1) a delivery, (2) by the debtor or his representative, (3) to the creditor or his representative, (4) of money or something accepted by the creditor as the equivalent thereof, (5) with the intention on the part of the debtor to pay the debt in whole or in part, and (6) accepted as payment by the creditor. [30. Cyc. 1181.] The rule is-well established that in the absence of an agreement between the parties that it is to be received as payment, the common-law rule which prevails in England and has been adopted without question in nearly all of the States in this country is that a draft or bill of exchange, acceptance, order or promissory note of the debtor is not a payment or an extinguishment of the original demand. And the same rule applies to the bill, note, order, or acceptance of a third person given by the debtor to the creditor. [30 Cyc. 1194.] And Missouri is one of the States that has accepted the common-law rule that the taking of a check, bill of exchange or note for a debt is not payment of the debt unless the creditor expressly agrees to take it as such; it is not payment until the money is received on it. [Selby v. McCullough, 26 Mo. App. 72, and ases cited; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 570, 22 S. W. 813; Smith v. Bank, 120 Mo. App. 550, 97 S. W. 247; Barton v. Hunter, 59 Mo. App. 618; Carroll Exchange Bank v. First National Bank, 58 Mo. App. 17.] The trial of this case by the court proceeded upon the theory that the' acts of the plaintiff and its agents constituted an estoppel in pais. There was no defense pleaded except payment. An estoppel in pais, whether the estoppel arises from neglect, laches or otherwise, must be pleaded in order to be available as a defense. [Bray v. Marshall, 75 Mo. 327; Cockrill v. Hutchinson, [307] 135 Mo. 67, 36 S. W. 375; Golden v. Tyer, 180 Mo. 196, 79 S. W. 143; 16 Cyc. 772.] But even if such estoppel had been pleaded in this case, the facts conclusively establish that the plaintiff was not estopped to deny the receipt of the draft or its proceeds. The undisputed evidence shows that the plaintiff was neither negligent nor guilty of laches or other conduct which would constitute an estoppel in pais. [Henderson Trust Co. v. Ragan (Ky.), 52 S. W. 848; Shipman v. Bank, 126 N. Y. 318, 12 L. R. A. 791; Lieber v. Bank, 137 Mo. App. 158, 117 S. W. 672; Kenneth Inv. Co. v. Bank, 96 Mo. App. 125, 70 S. W. 173; Wind v. Bank, 39 Mo. App. 72.] In this case, the evidence introduced by the defendant showed that the plaintiff had never cashed or indorsed the draft. The payment of a draft upon a forged indorsement to a person unauthorized to receive it is not in law a payment, because the drawee of the draft was bound to know that the indorsement was genuine, and if paid on a forged indorsement, was paid at the peril of the drawee. To all intents and purposes, in law, the money of the defendant is still in the hands of the National Exchange Bank. The draft, never having been paid to the real indorsee, the plaintiff, but to a stranger whose name-was forged as indorsee, in law, the money represented by the draft is still in the hands of the. National Exchange Bank and still the property of the defendant and subject to be appropriated by it. There was no privity of contract between plaintiff and the drawee of the draft and plaintiff could not collect the fund which it represented. The bank is not only bound to know the signatures of its depositors so as to render it liable for a payment on a customer’s forged draft, but is equally bound to know that the indorsement of one who is a stranger to it is genuine. It is liable for the payment to the wrong party of an altered check or draft. [Houston Gro. Co. v. Bank, 71 Mo. App. 132; Merchants’ Bank v. Ins. Co., 110 Mo. App. 66, 84 S. [308] W. 101; Bank v. Bank, 109 Mo. App. 671, 83 S. W. 537; Belknap v. Bank, 100 Mass. 376; First National Bank v. Whitman, 94 U. S. 34; Hatten v. Holmes (Cal.), 31 Pac. 1131; 5 Cyc. 1076.] A typical case is that of Houston Gro. Co. v. Bank, supra, where a retail dealer in paying for goods to a wholesale dealer gave his check to the traveling salesman of the wholesale dealer. This salesman indorsed the name of the payee without authority on the check, drew the money out of the hank and deposited the sum to his own account. The wholesale dealer whose salesman and agent had forged its indorsement then sued the bank for the amount of the forged checks. The court held that plaintiff could not recover because there was no privity between the payee of the checks and the drawee; that the pretended payment would not diminish the funds of the drawer in the bank or put any money in the pocket of the person entitled to payment; that the state of the account was the same after the pretended payment as it was before. The present case was tried by the court upon an erroneous view of the law. The court declared, in substance, that if the draft was mailed to the plaintiff and was stolen or converted by the plaintiff’s bookkeeper, the defendant was entitled to a credit for the amount. Such a view is not Avarranted by any authority that has been presented to us. Such a construction of the law would make the mere mailing of a draft a payment, regardless of whether the payee received it or accepted it as payment or received the proceeds of it and would constitute a payment if such draft was stolen by the payee’s bookkeeper, regardless of any act on the part of the payee or any authority or apparent authority of the bookkeeper to indorse or collect the draft. Such a view of the laAV cannot be approved. Under the authorities cited, it is clear that the judgment was for the wrong party. The plaintiff’s demurrer to the evidence should have been sustained. [309] The judgment is accordingly reversed and the cause remanded with directions to the circuit court to enter judgment for the plaintiff for the sum of $86.48, with interest at the rate of six per cent, per annum from the 26th day of December, 1906, together with costs. All concur.