53 Tex. 200 | Tex. | 1880
The §1,500 deposited by Shirley, the assignor of appellee Kennedy, with White, a banker, seems to have been a general and not a special deposit, and as such, created between Shirley and White simply the relation of creditor and debtor. Duncan v. Magette, 25 Tex., 248.
This amount was subsequently passed to the credit of White on the books of the company, and a receipt given to him reciting that the same was held “ subject to order of W. B. Wasson, or whom it might concern, being amount of money deposited with White by T. M. Shirley to pay said Shirley’s draft in favor of W. B. Wasson, which Wasson has not called for.”
This arrangement was afterwards ratified by Shirley.
This did not create upon the part of the company a trust in favor of Shirley, that the money should be invested for him in the bonds of the company, but the latter was simply substituted for White, and became responsible to hold the amount, subject to the demand of Wasson, or if this demand should be satisfied otherwise by Shirley, then to hold it subject to his demand.
The subsequent action upon the part of the company in placing this amount as a credit on the account of appellant Baker, with them, if unauthorized, rendered the company liable to the true owner, but did not create any privity of contract between Shirley and Baker, or make Baker such trustee of Shirley as that any investments which might be made with the money would enure to the use and benefit of Shirley. If it created any liability on the part of Baker to Shirley, it was
The subsequent offer by Baker to deliver certain bonds to Shirley was conditional, and it not being accepted, was not binding as a contract upon either.
Under the evidence presented by the record, the suit could not be maintained for the recovery of specific bonds.
Can it, under the pleadings, be maintained for the value of the bonds as damages?
The case as made, both by the evidence and the brief of counsel for appellee, is that the assignment from Shirley to appellee Kennedy was of three bonds of the company, and the pleading of Kennedy was evidently based upon the theory that his right of action was for the bonds themselves.
If he had the superior right to the bonds, he was entitled to them or their value; or if he had sued as his cause of action for money had and received, or converted by Baker, and the evidence had sustained his claim, then he was entitled to the amount of money thus obtained by Baker, with interest.
The judgment is for the sum of §2,858.98, which could be discharged by that amount in value in bonds of the company.
We do not think that the judgment responds to the case, as made by the pleadings and the evidence, and the same is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered March 20, 1880.]
