(Oirw,it Court, No D.,nZmoia.
10' FAOTORS .AND' BROKERS-FACTOR'S ,LIEN-AGREEMENT TO
Farlow, a dealer in live-stock at Marshall, Mo., shipped live-.stock to the de· fendants, live-stock brokers at Chicago', which wete purchased by Farlow 'with money advanced him therefor by the plaintiffs, bankers s,t the place shipment in Missouri. Farlow drf;tw;dr.afts on thede,fendants, payable .to the plaintiffs, on each shipment. and all drafts so drawn were honored. excepting thelast one, involved in this suit. This draft was dishonored, the defend.'l.yIng a large part. of t.h . 0.' cee.ds. Of,the last Sb. Ipmep.t o.n 11.11 old Cia.IIll .. a.ntsapp against Farlow. claiming a,factor'a ,lien., The plain,tiffs in this suit claimed tlilttthe defends,nts had orallY agreed with them to honor all Farlow's drafts drsWil on' shipments, 'and that on the faith of such'agreement they advanced the money to Farlow to purchase the cattle. which agreement the defends,nts denied. .The PJIaintiffs claiPlfil,d, regardless. of such agreement, tbat the defendants ,knew that the cattle were purchased with money advanced by the plaii1tilfs to Farlow. mid that, if such agreement was made,the fendants· wete' liable.
If the cattle. were purchaslld by Farlow with money obtained from the plaintiffs with the agreement that the-plaintiffswere to be paid for their advances . on such oattleout of the proceeds;of the same when' sold ,by the defendants as Farlow':s brokers, and that ,the. defendants. knllw of such agreement twee.n lj.nd the plaintiffs"thell thedefendaIlts,as :F;arlow's broke.rs. had no nght to apply any part of the proceeds of said cattle to the paymeut of th'e debt of Farlow to the draft'was fully paid.
SAME-NOTICE OF ADVANCES ON SHIPMENTS.
And such ia the law, whether such knowledge on the part of the defendants was actual or c()Dstructive, the question being whether the defenlilantsknew that adv&Ilcesfrom the, plaintJtIs upon these cattle, and had appropriated the proceeds of the cattle to the paymell.t of those by the draft. 1lfotheyhad: such knowledge, they had no rIght. to. approprIate own debt agllinst Fa,rlow.. Such knowlthese proceeds tp the edge might be derived .expressly, or frpm the course of business between the parties theretofore, or from the'defendants' knowledge of Farlow's' financial ability, or otb,er preWlant facts. . ,
At Law. FlolJ)e1', Remy & Hol8tein, fOJ: plaintiffs. Prank P. Sebree, H. Musgrave, JOB.A. Sleeper! and Thea. G. defendants.
BLODGE'1'T, J., (charging jury.), . This suit is brought upon an alleged agreement by the defendant to pay a draft of $H,274, drawn JuLy 13, 1886, by one George Farlow, payable to the plaintiftk The plaintiffs, at the time of the fransaction in question, were bankers at Marshall. in the state of Missouri. The defendants were live-stock brokers at the stock-yards in the city of Chicago. The plaintiffs' position is substantially this, as plaintiffs' proof tends to show: that on or about the last of March or the first of April. 1886, the defendants, by William Hall. one of the copartners, agreed with the plaintiffs that if they (the plain1
Reported by Messrs. Flower. Remy
Holstein. of the Chicago bar.
"CORDELL t1. HALL. '
tiff.'3) would crteh the drafts: drawn by George Farlow on them against made by Farlow to the defendants, they (the deshipments of fendants) would pay such drafts. The first controverSy you meet attha threshold of this case is as to whether such an agreement was' made. The plaintiffs have called in support of their position one of the members of the firm as a witness, Mr. Cordell, who testifies in substance that this promise was made to him at his bank in the town of Marshall, in an interview between himself arid Mr. Hall. William Farlow is also called as a witness by the plaintiffs, who testified that he was present at this conversation and heard it, ora great part of it; at least that he heard the defendant Hall say, "Go on and cash the drafts, and we will pay them, until further notice." 'The testimony of Mr. Cordell is to the same effect: that the defendant Hall said to him, "We will pay the draftS drawn for the cost of the cattle bought by Farlow and shipped to us, until further notice. " There is' a letter written by the defendants-not to the plaintiffs, but allowed to be put in evidence-in which they refer to the course 'of business; and there is the testimony of George Farlow tending to sustain the same proposition on the part of the plaintiffs. The plaintiffs insist that something is to be inferred from the course of business which immediately followed this alleged contract between themselves and the defendants, as the defendants went on and cashed the drafts as they were drawn. Although in many cases, as the proofs show, the proceeds of the cattle were not sufficient to pay the drafts, yet the defendants paid them without objection, and under such circumstances as make what they did in the way of paying this draft admissible proof in behalf of the plaintiffs, you being the judges of the weight and value of this circumstance as proof of plaintiffs' case. This business ran on in this way from the time the contract is claimed to have been made until the draft in question was drawn on the 13th of July, 1886. On the part of the defendants Mr. William H!tll is called as a witness, and he testifies that he made no such contract as Mr. Cordell and Mr. William Farlow testify to; that he did not agree for his firm that they would pay the drafts drawn by Farlow for the cost of the cattle which he might buy to ship and consign to them; so that you have a conflict of telltimany here, and it becomes your duty in this case, so far as you are able to reconcile this testimony if you can; if not, to say where the preponderance of the proof lies. You are the judges, under the law, of the credibility of these witnesses, and not only of the credibility of the witnesses, but to say which of them you will believe. It is for you to say, in the light of the testimony here, whether the defendants did agree, as is charged in this case, that they would pay these Farlow drafts that should be drawn, and you will say where the preponderance ofthe proof lies. You are the judges. You have heard the witnesses testify. You have seen them here in court, and are to say whether the plaintiffs' or defendants' position is sustained by the preponderance of proof. If you find from the proof that Mr. William Hall, one ofthe firm, agreed with the plaintiffs to pay these Farlow drafts drawn against the live-stock shipped by him to the defendants, that the draft in question waS so
drawn, and that the defendat:tts have refused to pay said draft, then the defendants are liable for the amount unpaid on this draft. You will remember that the proof shows without dispute that there was the sum of $5,936.55 paid, about three days after these cattle'were sold, to the credit of the plaintiffs in one of the banks in this city. So plaintiffs admit the receipt of that amount on account of this draft, which leaves a balance due of $5,337.45 after applying this payment, with interest from 15th July, 1886, the time the draft was protested for non-payment, if you find this contract was made. You cannot find for the plaintiffs upon this aspect of the plaintiffs' case, unless you .find from the proof that the defendants did agree to pity these drafts as they should be drawn upon the defendants by Farlow, and cashed by the plaintiffs. [f you do find that this agreement was made, then the defendants are liable in this case for the unpaid portion of this draft, which is $5,337.45, !lnd interest on the amount from the 15th of July, 1886, to the present time. If you find the testimony does not establish this agreement to pay these drafts by the defendants, then the defendants are not liable to pay the amount of the draft; but in that event, if you do so find, there is still another aspect of this case to be considered in the light of the evidence. If you are satisfied from the proof that the nine car-loads of llattle and the one car-load of hogs mentioned in this draft,-for you will observe the draft itself upon its face shows that it is drawn against nine car-loads of cattle .and one car-load of hogs,-and you are to construe, in the light of all the testimony, !that it was drawn against the nine car-loads of cattle and the one car-Load of hog& shipped, out of which proceeds the draft is to be paid-if you are satisfied from the proof that the nine carloads of cattle and one car-load of hogs mentioned in this draft as shipped by George Farlow were bought by Farlow with money obtained from the plaintiffs with the agreement that the plaintiffs were to be paid for their advllnce on such cattle out of the proceeds of such cattle when sold by the brokers, and that the defendants knew that such defendants as was the agreement between Farlow and plaintiffs at the time defendants received the consignment,-that is, that the defendants knew from the course of business between the plaintiffs and George Farlow and themselves, and from other sources, that Farlow had obtained the money to pay for said cattle and hogs from plaintiffs, and had appropriated the proceeds of saidsbipments to the payment of said draft,-then the defendants, as Farlow's brokers, had no right to apply any part of the proceeds of said cattle to the payment of the debt of Farlow to themselvesuutil the draft was fully paid. You will remember the proof shows these cattle andhogs brought, net cash, $10,102.27, out of which the defendants paid to themselves-that is, they kept for the purpose of canceling their claim against Farlow-the sum of $4,165.72; and deposited the balance, $5,936.55, to the credit of the plaintiffs with their correspondent here for the use of GeorgeFarlow. Now, if you are satisfied tram the proof that the defendants knew that Farlow had obtained advances fron:dheplaintifl's upon these cattle, and that he had appropriated the proceeds of these cattle to the payment of those advances by
CORDELL V. HALL.
this draft, then the defendants had no right to appropriate these proceeds to the payment of their own debt against Farlow. So that, in this aspect of the case, if you find from the proof that Farlow had appropriated, with the knowledge of the defendants, to the paymentofthis draft, the proceeds of these cattle nnd hogs, then the defendants are liable for this $4,165.72, which they applied to the payment of tlleir own debt against Farlow. You are to infer, or, rather, you are to say whether, from the evidence in this case as to the course of business and dealings between the defendants and Farlow, and between the plaintiffs and the defendants, the defendants knew of the dealings between Farlow and the plaintiffs,-whether they did or did not know Farlow had been advnnced money from the plaintiffs upon these cattle. In considering this t,.;pect of the case you are to say whether the evidence' shows that Mr. William Hall, at the time he visited Marshall, Mo., in the spring, found Farlow to be a man of means, and enabled to make purchases of such a shipment of cattle as this was, or whether he knew from Farlow's financial condition that he must have obtained advances from some one to purchase this shipment, and therefore that the persons making the advances were interested in the shipment. When this draft came to the notice of defendants, you are to say from the proof whether the draft itself was not notice that plaintiffs' money had purchased these cattle and hogs, because the draft refers to the cattle and hogs, You will remember that the testimony tends to show, and is, and perhaps it may be said to be undisputed, that the defendants knew that }t'arlow was not a man of sufficient means to carryon such a volume of business as he had been carrying on with defendants from the time he began these shipments,-about the 1st of April, 1886. To recapitulate, if you find the contract which is set out in this declaration-that the defendants agreed to pay these drafts -is proven, then the defendants are liable for the full amount unpaid in the draft, with interest at 6 per cent. If you find tha,t this branch of the C:lse is not made out, but do find that the defendants knew that the plaintiffs had advnnced their money on these cattle, and that Farlow had appropriated the proceeds of them to the repayment of those advances, then you will find the defendants liable for the amount of money which they then appropriated, $4,165.72, and interest on that from the time they appropriated it, which would be the time they recei ved it,-the 15th of July. For your convenience I have just noted with pencil on the draft and protest, which you will take with you, the amount of the draft and amount of payment, $5,936.55, and struck balance, $5,337.45) and have also noted the undisputed fact as to the amount of the proceeds of the cattle, and the amount which was paid to the plaintiffs out of the proceeds, leaving the balance of $4,165.72, which, in the latter aspect of the case, would be the sum upon which you would compute the interest. Verdict for plaintiffs for full amount claimed. Judgment on verdict. Defendants appeal to supreme court.
, , ADREVENO ,'11, MUTUALRF,sERVE FUND LIFE ASS'N.
(Oircuit O()Urt, E. D.Mi88()Uri, E. D.
The provisions of Rev. St. Mo. i\ 4017, prohibiting a physician from testif," , , ing.as to any inforPlation he, may have acquired from any patient while visitlng,him professionally. may be waived by the patient. and. when waived by & clause in an application for life insurance, such waiver is binding on the benetl.ciary. '
Action on life insurance policy. This.was an action by Giovani B. Adreveno, plaintiff, on a certificate of insUtanee issued to the son of plaintiff by the Mutual Reserve Fund Life Association, defendant, for the sum of $5,000. Plaintiff was the beneficiary named in the certificate. The defendant relied upon alleged false. representations in the application for the certificate as to the previQUS health and habits,of the deceased. To prove that these representations,were false, the defendant offered to introduce the testimony of sever8J. physicians, who had attended deceased prior to the date of the application. The plaintiff objected, on the ground that the witnesses were precluded from testifying under section 4017 of the Revised Statutes of Missouri. The questions and objections thereto were as follows: "Question. I will now ask you with what disease he was afflicted while he was there in the hospitijl? Counsel [01' the plaintiff objected, if the information oithe witness was obtained from the patient while attending him. Q. From whom did you get your information as to what he was afiiicted with. -from him by an examination of his pl·rson, or from talking with him? A. Yes. sir. Q.Was it necessary for you to get that information in order to treat him properly? A. Certainly it was. Plaintiff's counsel renewed his objection." CoUinstIc Jamison, for plaintiff. O. tIc J. O. Jonea, for defendant.
,THAYER, J., (after stating thefacts.) I see that the application for the policy contains the following clause: "And the applicant hereby expressly waives any and all provisions of law now existing. or that may hereafter exist, preventing any physician from disclosing any information acquired in attending the applicant in a professional capaoity or otherwise, or rendering him incompetent to testify as a witness in any w,ay Whatever." Section' 4017, Rev. St. Mo., declares that "the following persons shall be incompetent to testify: A physician or surgeon, concerning any inforrilation which he may have acquired from any patient while attending h,im in a profes$ional character, which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon." It has been held in this state in three cases, viz., the case of Groll v. T(YU)e7', 85 Mo. 253; Carrington v. Oity of St. Louis, 89 Mo. 208, 1 S. W. Rep. 240; and Squireav. Oityof Chillicothe, 89 Mo. 226, 1 S. W. Rep. 23,-that section 4017, which I have