nJ)UAL REPORTER, vol. 51.
which the town lawfully8ubscribed and acquired, and has not paid for, tbet1'thepleaof the statu'temay be a good plea. At all events, it doea notcll.ftirmatively appeal' that the plea in that event is untelUlble. Thu;demurrer is overruled.
NORTH A'l'CUISQN BANK tI. GARRETSON d (OWcUu CounO/.AppeaZl, E-tahth.Ci.rcuUo Jun.
. One '1'., haVing purobased certain cattle offered his cbeck for 122,000 In plymen\. Tile eeUerrefuse<1 to it or part with the cattle until assured that the check would be pail!, and therefore telegraphed the drawee, asking if it would pay '1'''1 cbeck fer $92,000. Tbedraweeanswered: "'1'. la good. Send on your paper. It Held, th.t tbil constitl,ltedacontract to pay the check on presentation. 89 Fed. Rep. 168, and 47 Fed. Ren. 867, aflirmed. 1.i:UK_AGBBlliMlliNT TO AdoBPT-btMATEBUL VaumoN. A bank which has agreed to accept a cheok for a certait) sum cannot refuse payment l!ecause the oheck when presented concludes with the words "with exchange," DO place of exchange belnlt named, and the check being dated and payable in the lame toWDt for luch words,are mere surplusage, and of no effect. 47 Fed. Rep. 867. aflirmed.
In Errol' to the Circuit Court of the United States for the Western District of .Missouri. Affirmed. Willard P. HaU and Vinton Pike,.for plaintiff in error. L. O. KrauthojJ, for defendants in error. Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, Distric' Judge. SHIRAS, District Judge. The plaintiffs below, G. A. Garretson & Co., .. firm engaged in the banking business at Muscatine, Iowa, brought this action in the United States circuit court for the western district of Missouri, against the North Atchison Bank, a corporation located at Westboro, Mo., to recover the am()unt of a check drawn by one James Tate on the defendant bank for the sum of 822,000. The case was submitted to the trial court upon an agreed statement of facts, and judgment Was given in favor of the plaintiffs, the reasons therefor being very fully lind ably stated in an opinioli reported in 47 Fed. Rep. 867. The facts necessary to be stated are as follows: In September, 1888, the Muscatine Cattle Company sold to James Tate 1,000 head of cattle, at $22 per head, delivery of the cattle to be made at Pueblo, Colo. Tate offered to A. J. Streeter, the agent of the cattle company, in payment for the cattle, his check for $22,000 on the North Atchison Bank, and thereupon Streeter sent the following telegram to the bank: . .. PuEBLO, CoLO., Sept. 2. 1888. "Po North Atch:tson:Bank. Westboro, Mo.: Will you pay James Tate'. check on lOU, twenty-twotbousand dollars Answer; , .. A. J. STREETER.·
NORTH ATCHISON BANK
To this telegram the following reply was sent and delivered to Streeter: "WESTBORO, Mo., Sept. 29, 1888. "To A. J. Streeter, Pueblo, Colo.: James Tate is good. Send on your paper. NORTH ATCHISON BANK." On the receipt of this answer, and on the faith thereof, the Muscatine Cattle Company delivered the cattle to Tate, and accepted from him in payment thereof his check in the following form: "WESTBORO, Mo., Sept. 28. 1888. "Nm'thAtchison Bank: Pay to the order of Muscatine Cattle Company twenty-two thousand dollars. with exchange. "$22,000. JAMES TATE." The cattle company, being at the time indebted to the plaintiff firm in a sum exceeding the amount of the check, exhibited the same, with the telegrams already set forth, to the plaintiff firm, and thereupon said firm accepted the «heck, giving the cattle company credit therefor. In due time the check was presented for payment to the North Atchison Bank, which was refused, the reason assigned being, "Want.of funds." Subsequ.ently the bheck was again presented, and a demand made for payment, which was . refused, on the ground that "Tate had countermanded the same." Counsel for plaintiff in error in the brief filed in the cause discuss at some length the question whether the check is to be deemed an inland bill of exchange or a certified check, but, as we view the case, thesear,e matters aside from the real question at issue. In the petition filed in the cause the plaintiff's therein set forth thefacts in extenso, and base the right of reco:very thereon, regardless of the technical distinctions existing between inland bills of exchange and checks accepted or certified. The rights of the parties are dependent solely upon the question whether the North Atchison Bank bound itself unconditionally in writing to pay Tate's check on the bank for the sum of $22,000. If that is the fair meaning of the telegram passing between Streeter, as the representative of the Muscatine Cattle Company, and the defendant bank, then, as the admitted fact is that the company delivered the cattle to Tate and received the check in payment therefor on the faith of the promise made by the defendant bank, it follows that the bank is bound to make good the promise made. When correspondence is hlld and a contract is entered into by means .of the telegraph, it is not to be expected that the terms thereof will he set forth with as much fullness as would ordinarily be the case. if the parties were in each other's presence. The telegraph, however, is now a well-recognized means of communication in .the business world, and contrads made through its use must be construed and enforced according to the intent of the parties thereto, The firstcomrnunication between the contracting parties came from the agent of the cattle company. The admitted Jacts in the case clearly show that his purpose in sending the telegram was to ascertain whether he could safely accept Tate's .check for $22,000 in payment for the cattle to be delivered; in
vol. 51; , ;" :
fwouldbepaid' !bythebank'on presenmtion.The the bl,lon,lt was wholly free from ambiguity. It was clear, yOllpay clleckon you, twentytvrolithousaud There can be no doubt that it was iJl,sep!iing this to, ,lJ.ecertain whether the b,ank ,woQJd bind itsiMt'p,pay in case he took it in payment for the cattle to be to 'Can there,pe any doubt that the ballk ,must haye understood the purpose' and meaning of the dispatch thus to it? ,The was engaged in the business of receivingmoney on deposit', 'and Hout on checks drawn by its deposmeaning could be 'given to the telegram by the bank than that James Tate's check on the bank for $22,000 had been offered to Strireter, and before he accepfed it he wished to know whether it wotild be paid onpre.ientatlon. So far, therefore, as the meaning of the Wlegtatn:sentto the batik ispersuRsivein determining the contract of the parties" it must be held that its purpose was to procure an absolute promisb of payment'fromthe bank, before the same could be received in :Pil.yment.for the cattletontraoted to be sold to Tate. Itoonnot be questioued, and it is practically admitted by counsel for the 'bank, that ifthe answer had been, "The bank will pay Tate's check for twenty-two thousand dollars on presentation," there would be no doubt that thereby the bank would have been bound absolutely for the payment of the check.' Can any other meaning be fairly given to the words actually used by'the bank in answering the question put to it? These are,"James Tbite is good; send on your paper." Counsel for plaintiff in error claim-that the answer should only be construed to be a statement that Tate was good for the amount named, and cannot be construed to' be a promise to pay the check. The question put to the bank, and to \vhich an answer was requested, waS not whether Tate was good,but whether the: bank would pay his check·for a given Sum. It cannot be supposed" tha.t' the bank intended to' return. an ambiguous answer for the purpose Of misleading the party asking the question, and therefore, if the answer had been limited to the words "Tate is good," there would be groun'dfor holding that the batik thereby intended an affirmative answer to the categorical question putto it; but all doubt is put at reatb'y the remaining words of the answer,to wit, "Send on your paper." , These words invited action on part of the person to whom they were They are not merely an expression of an opinion. Read in conotlctionwiih the message sent by Streeter, and which they were intended to answer, the meaning thereof is,"Send on your check On Tatej and we will pay/it." When the answer reached Streeter he was clearly julttified in assumiilg that the meaning ofthe bank was that if he sent on the Qheck the:bank would pay it on presentation. 'The intent of the parties who thus exchanged proposition and answer, -by means of the telegraph, jstobe derived from the words used by them. read in the light'of ,the circumstances then .in existence. The ;court is not called upon to consider the nice distin<ltions that may exist between bills of' exenauge,checks" aCGepted, and checks certified, but
WqRTH'I7. CHICAGO, M. &: ST. P.RY. CO.
only" the question whether the defendant bank agreed to pay Tate's check for $22,000, and, as already stated, that, in our judgment, is just what the bank, in the answer it returned to the telegram sent to it, bound itself to do; and when, on the faith of this promi5e, the cattle company delivered the cattle to Tate, and accepted the check in payment, the bank became legally liable for the payment of the check in question. It is said, however, that the check presented is not the same as the check named in the telegraphic correspondence, because it contains the words "with exchange," and thereby the amount needed to pay the .check is inci'eased over the sum named in the telegram. This is evidently an afterthought. This objection was not taken when the check was presented, and it is wholly without merit. No legal force can be given to these words. They cannot be construed to increase the amount called for by the check, and they are clearly and are therefore to be disregarded. The check is dated at Westboro, Mo., and is payable at Westboro, and therefore there is no basis for calculating exchange. The bank is not directed to pay $22,000 with exchange on Chicago, New York, or any other place. According to its terms, it called for the payment at Westboro, Mo., of the sum of $22,000, which is justthe sum, no more and no less, which the bank agreed to pay by the answer it rE'turned to the telegram sent it on behalf of the cattle com.;. pany. Thejudglllent below is affirmed, at cost of plaintiff in error·
M. & ST. P. Ri-. Co.
(OirCUit Court, N. D. Iowa. July 9, 1899.)
CARRJERlh-INJURY TOPASSE::'IGltaS-AnMISSmJLJTYOF EVIDIINCE.
In an action for injuries caused to a passenger by the derailing of 8. cal', defendant introduced evidence tending to show that the derailment was caused by a t.ie in the frog of a sWitch; that IIbortly beforetbe accident. four persons were· seen· upon the track in. the vicinity, who seemed to avoid meeting another person walking' along the track; that in tbe neighborhood· was the cainp of certain persons who had been employed in repairing the tracks, but ·who had been discharged, causing ill feeling. Held, tbat it was competent to furtber prove that two of these persons had shortly before made tbreats against the company, and that one of them had said be would ditch the train. lJUller v. Rtl.Uroad Cu., (Or.) 26 Pac. Rep. 75, distinguished.. .
At Law. Action by Mrs. William Worth against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for personal injuries. Verdict for deli:mdant. The case is now hearJ on motion for a .new trial. Denied. Rickel Crocker and Charles C. Clark, for plaintiff. Mills Keeler, for defendant.
SHIRAS, District Judge. The plaintiff herein was a passenger upon 8 train upon defendant's road, going eastw&lird from OouDcilBluffs, Iowa,