G-ill, J.
This case is here on a second appeal. Its former disposition is reported in 50 Mo. App. 92. At the first trial the circuit court sustained a demurrer to plaintiff’s evidence, and this ruling we held erroneous for reasons stated in the'opinion. After the cause was remanded the defendant amended” its answer and a full hearing was had with evidence for both sides. The defendant again prevailed and the plaintiff has the second time appealed to this court.
I. The cause may now be disposed of on facts which we think are practically undisputed.
In January, 1891, one Tuley, a stock trader, purchased from different parties in the vicinity of Carrollton, one hundred and six head of hogs, for the aggregate sum of $938.40, and gave therefor his checks on the plaintiff Exchange Bank. Tuley had nothing to his credit in said bank and, besides, was then owing the defendant First National Bank $875 on an overdraft for a like purchase the week before. The one hundred and six hogs were brought to Carrollton, January 12, 1891, and put in the stock pens ready for shipment to Kansas City. On that day, he (Tuley) went to the plaintiff bank, and as to what arrangement was then and there made, we quote the testimony of Rea, the cashier.
11Q. Tell the jury first what he (Tuley) wanted you to do? A. Well, he wanted us.to pay forthe hogs, and he wanted us to understand, too, that the title in the hogs would be ours absolutely, or virtually you might say, and he really thought all the interest he had in them was the profits, if any. and he knew he had no [22]*22money with us; he knew we were paying for them. He just said he had no interest in the hogs only the-profits; and he wanted us to pay for the hogs.
UQ. And the hogs were.to be yours ? A. Tobeours, and the proceeds to be turned over to our credit in the Kansas City Bank, our correspondent.
UQ. Now state to the jury why you paid those checks, or agreed to pay those checks. A. On the express understanding that the proceeds would come back to us, .and that he had no interest in them other than the profits.”
His testimony on cross-examination was as follows:
líQ. And he agreed if you would honor the checks the hogs would be yours? A. Yes, sir.
“Q. And that he would ship them to Kansas City, or were you to take them at the pens ? A. No,, sir.' He was to deliver them up there; deliver the proceeds to our credit there.
“Q. At Kansas City and place the proceeds to-your credit ? A. Yes, sir. Q. And on that agreement and in consideration of that agreement, you did accept and pay his checks ? A. Yes, sir.
UQ. Were you sworn .as a witness on the trial of this cause at the July term, -1891 ? A. I expect I was.
“Q. I will ask you if you were not asked this question: ‘Was there anything said about the hogs being yóur property after being paid for ? ’ and didn’t you answer in this way: ‘He merely said-that if we paid for the hogs the proceeds would be turned over in Kansas. City; we therefore paid the checks, as they were presented ; ’ now did you swear to that ? A. I don’t know. I expect I did.
“Q. Was that the truth; was that substantially your recollection of it ? A. Both of them are true as far as that is concerned, because he said all the interest he had in them was the profit, if any.
[23]*23“Q. I am asking you if you swore to this; now let me read the question again and take your time: ‘Was there anything said about the hogs being your property after being paid for? ’ You were asked that question, weren’t you? A. I don’t remember whether I was or not; I expect I was, though.
“Q. And didn’t you answer it in this way: ‘He merely said that if we paid for the hogs the proceeds would be turned over in Kansas City; we therefore paid the checks as they were presented.’ Didn’t you swear to that, Mr. Rea, as I have read ? A. I guess I did, and I s-wear to this other, too; they are both the same.
“Q. And you swear ' the same way now ? A. I say, all the interest he had in them was the profits, if any; and the balance was ours; of course the hogs were ours.
“Q. And the balance was yours ? A. Yes, sir.
>UQ. Did you ever .see the hogs? A.. I don’t know whether I ever did or not; possibly I have.
UQ. You don’t know it if you ever did ? A. No, sir.
“Q. Did he turn them over to you on that day or any other day ? A. He didn’t deliver the hogs to me.
UQ. Whose name were they to be shipped in? A. They were to be shipped in his own, I presume.”
Notwithstanding the evident disposition of this witness to make' of this transaction an absolute purchase of the hogs from Tuley, it was clearly nothing of .the kind, and was not so intended. At most it was only a parol mortgage, as we held when the case was here before. The sum and substance of the arrangement was, that the Exchange Bank should advance the necessary funds to pay Tuley’s checks then out, and to secure this amount, or to make good the overdraft, Tuley promised that when he sold his-hogs in Kansas City, he [24]*24would turn the proceeds into the plaintiff bank. It is also shown by the evidence that this overdraft by Tuley on plaintiff bank was all the time treated as a loan of money and not as a consideration for purchase of the hogs. The bank charged it to him on account and subsequently took Tuley’s note therefor which the plaintiff held at the trial of the cause.
Now further, on this same January 12, 1891 (and whether before or after the ,above named agreement does not appear), Tuley gave to the defendant bank an order on his commission firm at Kansas City whereby they were directed to pay the proceeds of these same hogs over to said defendant. Tuley shipped the hogs to Kansas City; they were sold by his agents, and the proceeds in pursuance of his orders, were turned over to the defendant, who applied the same towards the payment of his overdraft due said bank.
Under this state of facts, the legal right of the defendant to retain the money in controversy is plain. The plaintiff occupies the attitude of one claiming under a chattel mortgage, which was not only unacknowledged and unrecorded, but was, in fact, never reduced to writing. It was, therefore, invalid as to the defendant, who accepted the proceeds of the sale of the property in partial payment of its claim against the alleged mortgagor. The defendant’s instruction number 1 was a correct declaration of the law and was properly given. Indeed the court would have been justified in a peremptory instruction for the defendant. .When the case was before us at a former hearing, such an instruction was held improper because there was no evidence tending to prove that defendant bank had any interest in the fund in dispute. But on a new trial this has been cured and defendant’s interest has been alleged and clearly shown.
[25]*25II.
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G-ill, J.
This case is here on a second appeal. Its former disposition is reported in 50 Mo. App. 92. At the first trial the circuit court sustained a demurrer to plaintiff’s evidence, and this ruling we held erroneous for reasons stated in the'opinion. After the cause was remanded the defendant amended” its answer and a full hearing was had with evidence for both sides. The defendant again prevailed and the plaintiff has the second time appealed to this court.
I. The cause may now be disposed of on facts which we think are practically undisputed.
In January, 1891, one Tuley, a stock trader, purchased from different parties in the vicinity of Carrollton, one hundred and six head of hogs, for the aggregate sum of $938.40, and gave therefor his checks on the plaintiff Exchange Bank. Tuley had nothing to his credit in said bank and, besides, was then owing the defendant First National Bank $875 on an overdraft for a like purchase the week before. The one hundred and six hogs were brought to Carrollton, January 12, 1891, and put in the stock pens ready for shipment to Kansas City. On that day, he (Tuley) went to the plaintiff bank, and as to what arrangement was then and there made, we quote the testimony of Rea, the cashier.
11Q. Tell the jury first what he (Tuley) wanted you to do? A. Well, he wanted us.to pay forthe hogs, and he wanted us to understand, too, that the title in the hogs would be ours absolutely, or virtually you might say, and he really thought all the interest he had in them was the profits, if any. and he knew he had no [22]*22money with us; he knew we were paying for them. He just said he had no interest in the hogs only the-profits; and he wanted us to pay for the hogs.
UQ. And the hogs were.to be yours ? A. Tobeours, and the proceeds to be turned over to our credit in the Kansas City Bank, our correspondent.
UQ. Now state to the jury why you paid those checks, or agreed to pay those checks. A. On the express understanding that the proceeds would come back to us, .and that he had no interest in them other than the profits.”
His testimony on cross-examination was as follows:
líQ. And he agreed if you would honor the checks the hogs would be yours? A. Yes, sir.
“Q. And that he would ship them to Kansas City, or were you to take them at the pens ? A. No,, sir.' He was to deliver them up there; deliver the proceeds to our credit there.
“Q. At Kansas City and place the proceeds to-your credit ? A. Yes, sir. Q. And on that agreement and in consideration of that agreement, you did accept and pay his checks ? A. Yes, sir.
UQ. Were you sworn .as a witness on the trial of this cause at the July term, -1891 ? A. I expect I was.
“Q. I will ask you if you were not asked this question: ‘Was there anything said about the hogs being yóur property after being paid for ? ’ and didn’t you answer in this way: ‘He merely said-that if we paid for the hogs the proceeds would be turned over in Kansas. City; we therefore paid the checks, as they were presented ; ’ now did you swear to that ? A. I don’t know. I expect I did.
“Q. Was that the truth; was that substantially your recollection of it ? A. Both of them are true as far as that is concerned, because he said all the interest he had in them was the profit, if any.
[23]*23“Q. I am asking you if you swore to this; now let me read the question again and take your time: ‘Was there anything said about the hogs being your property after being paid for? ’ You were asked that question, weren’t you? A. I don’t remember whether I was or not; I expect I was, though.
“Q. And didn’t you answer it in this way: ‘He merely said that if we paid for the hogs the proceeds would be turned over in Kansas City; we therefore paid the checks as they were presented.’ Didn’t you swear to that, Mr. Rea, as I have read ? A. I guess I did, and I s-wear to this other, too; they are both the same.
“Q. And you swear ' the same way now ? A. I say, all the interest he had in them was the profits, if any; and the balance was ours; of course the hogs were ours.
“Q. And the balance was yours ? A. Yes, sir.
>UQ. Did you ever .see the hogs? A.. I don’t know whether I ever did or not; possibly I have.
UQ. You don’t know it if you ever did ? A. No, sir.
“Q. Did he turn them over to you on that day or any other day ? A. He didn’t deliver the hogs to me.
UQ. Whose name were they to be shipped in? A. They were to be shipped in his own, I presume.”
Notwithstanding the evident disposition of this witness to make' of this transaction an absolute purchase of the hogs from Tuley, it was clearly nothing of .the kind, and was not so intended. At most it was only a parol mortgage, as we held when the case was here before. The sum and substance of the arrangement was, that the Exchange Bank should advance the necessary funds to pay Tuley’s checks then out, and to secure this amount, or to make good the overdraft, Tuley promised that when he sold his-hogs in Kansas City, he [24]*24would turn the proceeds into the plaintiff bank. It is also shown by the evidence that this overdraft by Tuley on plaintiff bank was all the time treated as a loan of money and not as a consideration for purchase of the hogs. The bank charged it to him on account and subsequently took Tuley’s note therefor which the plaintiff held at the trial of the cause.
Now further, on this same January 12, 1891 (and whether before or after the ,above named agreement does not appear), Tuley gave to the defendant bank an order on his commission firm at Kansas City whereby they were directed to pay the proceeds of these same hogs over to said defendant. Tuley shipped the hogs to Kansas City; they were sold by his agents, and the proceeds in pursuance of his orders, were turned over to the defendant, who applied the same towards the payment of his overdraft due said bank.
Under this state of facts, the legal right of the defendant to retain the money in controversy is plain. The plaintiff occupies the attitude of one claiming under a chattel mortgage, which was not only unacknowledged and unrecorded, but was, in fact, never reduced to writing. It was, therefore, invalid as to the defendant, who accepted the proceeds of the sale of the property in partial payment of its claim against the alleged mortgagor. The defendant’s instruction number 1 was a correct declaration of the law and was properly given. Indeed the court would have been justified in a peremptory instruction for the defendant. .When the case was before us at a former hearing, such an instruction was held improper because there was no evidence tending to prove that defendant bank had any interest in the fund in dispute. But on a new trial this has been cured and defendant’s interest has been alleged and clearly shown.
[25]*25II. Plaintiff further asserts some claim to this money by virtue of the testimony of its cashier tending to prove that, on the day the proceeds of the hogs were turned over to the defendant bank, he demanded the same, and that the defendant’s president said he “would fix it,” or “make it all right,” if, on investigation, it should turn out that the plaintiff bank and not the defendant had furnished the money to pay for the hogs. Conceding this evidence as tending to prove a positive promise by defendant to pay over the money to plaintiff, and yet it can furnish no ground for recovery in this action. For, in the first place, this is not an action based on such an obligation, and, in the second place, if it was in the range of the pleadings, then the promise was clearly a nudum pactum, and no action could be maintained thereon. The court then rightly refused plaintiff’s instructions numbers 4, 5, 6 and 7.
• III. It seems that when the hogs were sold in Kansas City, Tuley, who was present at the time, first directed the commission agents to place the proceeds of one car to the credit of the Exchange Bank and the other car to the credit of the defendant bank. In pursuance of this instruction, the agents deposited their checks in the Kansas City banks keeping accounts with the Carrollton banks. But before the checks were paid, or had been presented or passed through the clearing house, the commission agents, on the order of Tuley, withdrew said two checks and then deposited the entire amount to the credit of the defendant bank. Applying to this feature of the case, plaintiff asked the following instruction: “8. If the jury find from the evidence that the commission house, by the direction of said Tuley, after the sale of said hogs, paid over to the credit of plaintiff the proceeds of .one carload of hogs, to wit, the sum of $363.44, and that said pay[26]*26ment was in pursuance of the previous agreement made by said Tuley with plaintiff, as stated in the other instructions, and that said payment to the credit of plaintiff was afterwards changed and recalled by the commission house by direction of said Tuley and the same paid over to the credit of defendant, then the jury will find for the plaintiff as to that amount,” which the court refused to give and of such action the plaintiff complains.
Since the evidence shows conclusively that there was no payment to the plaintiff by the commission house, the court committed no error in refusing* this instruction. The mere giving a check is not a payment. A bank check drawn for a part of the drawer’s deposit does not operate either at law or in equity as an assignment or appropriation of the deposit pro tanto, or confer any lien upon it. Dickinson v. Coates, 79 Mo. 250. “A check is simply a written order of a depositor to his bank to make a certain., payment. It is executory, and, as such, it is of course revocable at any time before the bank has paid, or committed itself to pay it.” 1 Morse on Banking [3 Ed.], sec. 398; Albers v. Commercial Bank, 85 Mo. 173; Van Schaack on Bank Checks, p. 83. “It is competent for the drawer of a check to revoke the authority which he has given to the bank to apply his funds to the payment of it. He may at any time before acceptance or payment countermand the check.” Boone on Banking, sec. 198.
The undisputed facts here are, that Tuley’s commission agents, on the morning of January 16,'gave plaintiff’s Kansas City corespondent a check on another bank for $363, but shortly thereafter, and before such check had been presented, the drawer revoked and countermanded the same and took it up. This the drawer had a perfect right to do. The check was a [27]*27mere order, executory in its nature, and the drawer had full power and authority to revoke it before acted upon by the drawee; and, being countermanded and taken up, the matter stood as though no cheek had been given.
Under the law the judgment is for the right party and will be affirmed.
All concur.