Upton v. Jameson

67 Mo. 234

Opinion

Napton, J.

The deposition of House ought not to have been excluded from the jury, as it was essentially. The defendants themselves established the fact that his letters, one of them at least, had been received and destroyed or lost, and his statement that he wrote three letters to the defendants, or some of them, by addressing them at the postoffice or town where the notes were dated, means, of course, that he mailed them. Taking together the statements of House, and the statements of the defendants, the point of the case is, whether the defendants paid off' the note sued on to Auter Bros. & Schutt, before any one of these letters was received. Hpon this point the statements of the defendants and of House were irreconcilable, one or the other must have been mistaken. The question ought to have been submitted to the jury. If-the defendants were advised by the cashier of the Cameron bank that the note in suit had been placed there by the plaintiffs for collection, and, after that, paid the note to Auter Bros. & Schutt, the loss should be theirs, as such information was substantially a notice of the revocation of the authority of Auter Bros. & Schutt to collect the note; had such authority ever in fact existed. On the other hand, if the defendants did not receive said notice, the loss should be to the plaintiffs. In short, the second instruction, asked by the plaintiff, should have been given.

The judgment is therefore reversed, and the cause remanded.

The other judges concur.

Reversed.