East Line & Red River Railroad v. Terry

50 Tex. 129 | Tex. | 1878

Moore, Chief Justice.

Our conclusion upon the merits of this case renders it unnecessary to consider most of the questions which have been discussed by appellant’s counsel.

To unsuccessfully impeach appellant’s answer to the writ of garnishment, it was, unquestionably, incumbent on appellee to prove that appellant was indebted^ Zachry & Milner, or had money or effects of theirs in its possession or under its control, at the service of the writ, or at a date anterior thereto, with notice of the garnishment. In a proceeding of this character, the creditor is the actor, and the burden of proof is undoubtedly upon him; and unless he establishes the truth of his averments impeaching the answer of the garnishee, the latter must, unquestionably, be discharged. The garnishee is primarily required to stand merely upon the defensive. Hence it is not incumbent upon him to establish the truth of his answer, but simply to repel the efforts of the creditor to impeach it.

Now, did appellee, on the trial of this case in the court below, sustain his denial of the truth of appellant’s answer to the writ, or rebut the presumption raised by the answer in appellant’s favor?

On the 9th of August, 1877, the amount then due Zachry & Milner by appellant was ascertained and determined. On the next day the full amount due them was paid by the treasurer of appellant, apparently in the regular course of business, by a check on the bank in which appellant’s funds were kept. Zachry & Milner accepted the check and gave appellant a receipt in full for the demand, indorsed the check, and, as Zachry himself testifies, requested Cook, the secretary of appellant, by whom the check and receipt were handed him, to draw the money upon it; which he (Cook) accordingly did, and returned, in company with Zachry, to his office or place of business as secretary of appellant, carrying with him the money received, by Zachry’s request, on the check; and there, by the further request of Zachry, proceeded to pay it to creditors of Zachry & Milner, in accordance with pay-rolls prepared by them and furnished him for this purpose.

Now, what is the legal import upon this transaction ?

Certainly, upon its face and unexplained, there can be no hesitancy in answering that the acceptance of the draft by Zachry and its collection by Cook, by his request, import a payment of the debt in discharge of which it was given, even if this intention bad not been more clearly shown by the receipt. Hid the fact that the check was paid to the secretary of the appellant affect or rebut the inference to be drawn from the acceptance and collection of the check by the debtor ? Why should it? Zachry could have collected it in person, if he had chosen. That he did not, surely does not, of itself, alter the legal conclusion to be drawn from its acceptance and payment to him through the party who he had requested to collect it. Whose money was it when thus collected by Cook? On this state of facts, no one, we think, can hesitate to answer that it was the money of the owners of the check or the parties in whose favor it was drawn. Certainly,.we. imagine, no one would say that if Cook, after drawing it, had appropriated the money to his own use, or had refused to pay it to Zachry & Milner on their demand, that they could not have maintained an action against him for it, or that they would have had valid ground of action against appellant.

If, then, the appellant’s debt to Zachry & Milner was discharged by their acceptance of the check and its payment by the drawee as directed by them, did appellant become again indebted to them by anything subsequently occurring, or did the money subsequently pass into its possession and control as the property of Zachry & Milner ? If not, there can be no pretense that appellee has successfully impeached appellant’s answer. We arc totally unable to find anything in the record to warrant an affirmative response to either of those propositions. Certainly the fact that the money was in the custody of appellant’s secretary, and that he was keeping and using it, but not about appellant’s business, in its office, does not prove that it is chargeable for its custody or liable as a debtor for the amount thus held by one of its officers; if, indeed, appellant could be made liable by an unauthorized and wrongful act of its officer outside of his official duty and without its ratification or approval of his act. It would, it seenis, be a most unreasonable inference to suppose that appellees would have gone to the trouble of a mere formal or apparent payment of its debt to these parties merely to withdraw so much of its funds from the control of its treasurer, its proper custodian, to place it in the hands of its secretary, that he might use it in payment of debts for the' discharge of which it is not attempted to be shown that appellant was either legally or morally bound. It is true, Zachry testifies that Cook was not his agent when he drew the money from the bank; that he supposed he was acting for appellant. It appears, however, from what he afterward says, that these are mere inferences or conclusions of his. The facts show that the money was drawn by Cook by his request and on authority furnished by him; that Cook held it with his consent, and carried it to appellant’s office for his, and not appellant’s use, and there appropriated it, in his presence, in payment of his, and not appellant’s debts.

In the absence of any proof whatever to warrant such an inference, it cannot he inferred that Zachry could have thought, in all these matters so foreign, as we may infer he must have known them to be, to Cook’s duties as secretary of appellant, that he was acting for it and in his official capacity. The fact that Cook may have assumed authority, in paying out the money, beyond that with which he was intrusted, or may have acted in had faith, or that the president of appellant’s company may have connived or encouraged him in so doing, certainly did not make appellant liable to Zachry & Milner for the money in Cook’s, and not in appellant’s possession. Still less would it show that appellant was still their debtor.

The evidence not being sufficient to warrant the judgment, it is reversed.

Judgment reversed.