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value received, drawn or negotiated within this state, shall be duly presented for acceptance or payment, and protested for nonacceptance or nonpayment, there shall be allowed and paid to the holders by the drawer and indorsers, having due notice of the dishonor of the bill, damages in the following cases: First, if the bill shal have been drawn on any person, at any place within this state, st the rate of four per centum on the principal sum specified in the bill; second, if the bill shall have been drawn on any person. at any place out of this state, but within the united States or the territories thereof, at the rate of ten per centum on the principal sum specified in the bill; third, if the bill shall have been drawn on any person, at any port or place without the United States and their territories, at the rate of twenty per centumjon the principal sum specified in the bill. (R. S. 1909, § 10166.)
Statutory damage. Statutory damages are given only when note has been negotiated. Hauessler v. Haberstroh, 7 A. 458; Bank of Missouri v. Wright, 10 Mo. 719; Clark v. Schneider, 17 Mo, 295. Section cited and applied in Riggin v. Collier, 6 Mo. 568; Farrell v. Fritchle, 30 Mo. 190; Phillips v. Evans, 64 Mo. 17; Taylor v. Newman, 77 Mo. 257; Barnes v. McMullins, 78 Mo. 260; Kennerly v. Bragg, 1 A. 574. See, also, Bank v. Lumber Co. 121 A. 324, 98 S. W. 786.
Sec. 987. Damage on accepted bills not paid.—If any bill of exchange, expressed to be for value received, shall be drawn on any person, at any place within this state, and accepted, and payment shall not be duly made by the acceptor, there shall be allowed and paid to the holder, by the acceptor, damages in the following cases: First, if the bill be drawn by any person at any place within this state, at the rate of four per centum on the principal sum therein specified; second, if the bill be drawn by any person at any place without this state, but within the United States or their territories, at the rate of ten per centum on the principal sum specified in the bill; third, if the bill be drawn by any person at a place without the United States and their territories, at the rate of twenty per centum on the principal sum therein specified. (R. S. 1909, § 10167.)
See notes to preceding Section.
Sec. 988. The two preceding sections construed. The two preceding sections shall not be construed to require notice of nonacceptance or nonpayment, in any case where such notice is not required to be given at common law. (R. S. 1909, § 10168.)
See notes to Section 986.
Sec. 989. Damages, by whom recovered. The damages herein allowed shall be recovered only by the holder of a bill, who shall have purchased the same or acquired some interest therein for a valuable consideration. (R. S. 1909, § 10169.)
See notes to Section 986.
Sec. 990. Payment made in twenty days, no damages allowed. In cases of nonacceptance or nonpayment of a bill, drawn at any place within this state, on any person at a place within the same, no damages shall be recovered, if payment of the principal sum, with the interest and charges of protest, be paid within twenty days after demand, or notice of the dishonor of the bill. (R. S. 1909, § 10170.)
See notes to Section 986.
Sec. 991. Damages allowed to be in lieu of other charges, when. The damages allowed by this chapter shall be in lieu of charges of protest, and other charges and expenses incurred previous to or at the time of giving notice, or at the time when the principal sumshall become payable, when no notice of the dishonor is required to be given. (R. S. 1909, § 10171.)
See notes to section 986.
Sec. 992. Bill payable in money of United States, rate of exchange to be disregarded, when. If the contents of a bill be expressed in the money of account of the United States, the amount due and the damages thereon shall be ascertained and determined, without any reference to the rate of exchange existing between this state and the place on which the bill shall have been drawn, at the time of demand of payment or notice of the dishonor of the bill. (R. S. 1909, § 10172.)
Sec. 993. Bill payable in foreign currency, rate of exchange determined, how. If the contents of such bill be expressed in the money of account or currency of any foreign country, then the amount due, exclusive of damages, shall be ascertained and determined by the rate of exchange or the value of such foreign currency, at the time of payment. (R. S. 1909, § 10173.)
Sec. 994. Who may bring suit-against whom brought.The payees and indorsees of every such negotiable note payable to them or order, and the holder of every such note payable to bearer, may maintain actions for the sums of money therein mentioned, against the makers and indorsers of them, in like manner as in cases of inland bills of exchange, and not otherwise. (R. S. 1909, § 10174.)
Nicolay v. Fritchie, 40 Mo. 67; Ely v. Porter, 58 Mo. 158. By administrator of payee.-Bobb v. Letcher, 30 A. 43.
By endorsee for collection.-Beattie v. Lett, 28 Mo. 596.
No written assignment necessary in order to entitle holder to sue thereon in his own name. Willard v. Moies, 30 Mo. 142; Boeka v. Nuella, 28 Mo. 180.
Sec. 995. Notarial protest evidence of demand, etc.-A notarial protest is evidence of a demand and refusal to pay a bill of exchange or negotiable promissory note, at the time and in the manner stated in such protest. (R. S. 1909, § 10176.)
Certificate of protest of notary as evidence of demand. Commercial Bank v. Barksdale, 36 Mo. 563; Faulkner v. Faulkner, 73 Mo. 327; Clough v. Holden, 115 Mo. 336, 21 S. W. 1071; Nelson v. Kastle, 105 A. 79 S. W. 730; 187; Greffett v. Dowdall, 17 A. 280.
Objection that notary's certificate of protest is not verified by oath, as required by Sec. 5385, must be specifically made in trial court, otherwise its admission will not be reviewed on appeal. Peoples Bank v. Scalzo, 127 Mo. 164, 29 S. W. 1032.
As to admissibility of notary's certificate of protest in evidence, see Sec. 5385 and cases cited thereunder. See, also, Rolla State Bank v. Pezoldt, 95 A. 404, 69 S. W. 630.
The word "mailed," as applied to notice of protest, implies the prepayment of the requisite postage. Rolla State Bank v. Pezoldt, 95 A. 404, 69 S. W. 630. For further statutory provisions relating to protest, see Secs. 938 to 946, inclusive.
Sec. 996. Liability of corporation, firm or copartnership.— If any check, draft or order of any corporation, firm or copartnership shall be given in payment of the debt of any officer, agent or employee, of said corporation, firm or copartnership, the payee or other person collecting such check, draft or order shall not be liable to said corporation, firm or copartnership therefor, unless it shall be shown that such payee or other person, at the time of collecting same, had actual knowledge that said check, draft or order was issued without authority of said corporation, firm or copartnership (Laws 1917, p. 144.)
(R. S. 1919.)
WAREHOUSES, UNIFORM WAREHOUSE RECEIPTS AND UNIFORM BILLS OF LADING.
WAREHOUSES AND WAREHOUSEMEN.
13450. Warehouses and storehouses declared
13451. License for public warehouse.
13454. Property to be sold for storage charges. 13455. Warehousemen, etc., not to issue receipt until goods actually in store. 13456. Not to issue any receipt for money loaned, etc., until goods actually in
store. 13457. Not to issue second receipt, when.
13458. Not to sell, etc., goods without written assent of person holding receipt. 13459. Not to give shipping receipt until goods are actually on boat, etc. Receipts, bills of lading, etc., declared negotiable.
How transferred-lien created-exception. 13462. Penalty for violation of the provisions of certain sections of this chapter. 13463. Certain sections applicable to bills of lading. 13464. Exceptions as to application.
Sec. 13450. Warehouses and storehouses declared public warehouses. All warehouses or storehouses situated in cities of over fifty thousand inhabitants, and wherein other property than grain is stored for a compensation, are declared to be public warehouses. (R. S. 1909, § 11946.)
Sec. 13451. License for public warehouse. The proprietor, lessee or manager of any public warehouse provided for by this chapter, shall be required, before transacting any business in such warehouse, to procure from the circuit court of the county in which such warehouse is situated or if to procure license for a
public warehouse in the city of St. Louis, application shall be made to the circuit court of said city-a license permitting such proprietor, lessee or manager to transact business as a public warehouseman under the laws of this state, which license shall be issued by the clerk of said court upon written application, which shall set forth the location and name of such warehouse, and the individual name of each person interested as owner or principal in the management of the same, or if the warehouse be owned by or managed by a corporation, the names of the president, secretary and treasurer of such corporation shall be stated; and the said license shall give authority to carry on and conduct the business of a public warehouse, other than a warehouse for the storage of grain, in accordance with the laws of this state, and shall be revocable by the said court upon a summary proceeding before the court, upon the complaint of any person, in writing, setting forth the particular violation of the law, to be sustained by satisfactory proof, to be taken in such manner as may be directed by the court. (R. S. 1909, § 11947.)
In an action against a warehouseman and his sureties for conversion, where the evidence showed the location and name of the warehouse in which defendant stored plaintiff's goods to be entirely different from that mentioned in the application and bond, a joint demurrer to the evidence was properly refused, as a good cause of action was alleged and proved against defendant, if not the sureties. State ex rel. v. Sullivan, 99 A. 616.
Sec. 13452. Public warehousemen to give bond.-The person or persons receiving a license under the provisions of this chapter shall file with the clerk of the court granting the same, a bond to the people of the state of Missouri, with good and sufficient securities, to be approved by said court, in the penal sum of twenty-five thousand dollars, conditioned for the faithful performance of his or their duties as public warehouseman or warehousemen, and as security for the payment of all penalties and damages found and adjudged by due course of law, for violation of any clause of this chapter, and his or their full and unreserved compliance with the laws of this state in relation thereto. (R. S. 1909, § 11948.)
See note to Section 13451.
Sec. 13453. Transacting business without license-penalty. Any person or persons who shall transact within a city of over fifty thousand inhabitants the business of storing for compensation other property than grain, without first procuring license and giving a bond as herein provided, or who shall continue to transact such business after such license has been revoked, or such bond may have become void or found insufficient security for the penal sum in which it is executed, by the court approving the same (save only that he may be permitted to deliver property previously stored in such warehouse), shall be guilty of a misdemeanor, and
upon conviction, be fined in a sum not less than one hundred dollars nor more than five hundred dollars for each and every day such business is carried on; and the court that issued may refuse to renew any license, or grant new one, to any person whose license has been revoked, within one year from the time same was revoked. (R. S. 1909, § 11949.)
Sec. 13454. Property to be sold for storage charges. If the owner of any goods, merchandise or other property shall store the same in any warehouse created by sections 13450 to 13454, inclusive, of this chapter, and shall not pay the storage charges upon the same within a period of sixty days after said charges have become due, it shall be lawful for the warehouseman to sell such goods, merchandise or other property, or so much thereof as will pay all storage and other charges, at auction to the highest bidder, after having given either twenty day's notice by advertisement in a daily paper, or four week's notice by advertisement in a weekly paper, of the time and place of sale, and having further given notice to the owner by mailing him, at least twenty days before the day of sale, if his address is known, a notice of the time and place of sale; and if there be any surplus left after paying the storage charges, cost of advertising and all other just and reasonable charges, the same shall be paid over to the rightful owner of said property at any time thereafter, upon demand being made therefor within sixty days; and if no such demand for such surplus is made within sixty days after the time of such sale, then said surplus shall be paid into the county treasury, subject to the order of the owner. (R. S. 1909, § 11950.)
The expression "if his address was known" means if known or could be ascertained by reasonable inquiry. A warehouseman should sell no more than is reasonably necessary to pay charges and costs. If he unnecessarily sells all of the large amount of valuable and separable property, when clearly less than all would have been sufficient, he is guilty of conversion of all. A reasonable opportunity should be given prospective purchaser to examine the property. Ward v. Transfer Co., 119 A. 83.
Sec. 13455. Warehouse, etc., not to issue receipt until goods actually in store. No warehouseman, wharfinger, or other person, shall issue any receipt or other voucher for any goods, wares, merchandise, grain, flour, or other produce or commodity, to any persons purporting to be the holder, owner or owners thereof, unless such goods, wares, merchandise, grain or other produce or commodity, shall have been actually received into store or upon the premises of such warehouseman, wharfinger, or other person, and shall be in the store or on the premises aforesaid and under his control at the time of issuing such receipt. (R. S. 1909, § 11951.)
The purpose of this and the following sections was to prevent the issue of false bills of lading and warehouse receipts. State v. Kirby, 115 Mo. 440, 446; Aetna Nat. Bk. v. Power Co., 58 A. 532; Watkins, etc., Bk. v. Ry., 117 A. 248, 252.