*1 (Tex, REPORTER SOUTHWESTERN testimony proximate If the are the of cause. defect, true, he, FIRST NAT. SPRINGS OF HUGHES but BANK when, (No. 2338.) v. SANFORD et al. the cab to leave would not have tried did, he would he fallen at that and but for (Court Appeals Texarkana. Texas. Civil he fact The mere time. Rehearing 24, Denied Dec. pan adjust slipped the ash road 1921.) 24, Feb. connection, the causal break did not only concurring cause, in- an and was not <@==>69-Acceptance of draft 1. Bills notes and — grease intervening dependent, cause. The must be in brought simply lay wait, 132, Negotiable Act, to be and water §§ Under Instruments 135, acceptance operation in- must be writ- the cause an of a draft into active ing. Certainly cab. to leave the duced grease dissenting. J., action Hodges, which called into efficiency gave time for at the and water harm. Rehearing. Motion for On interrupt “Intervening agencies sometimes proper acceptor .<§=322(1)— Oral 2. Venue responsible connection between current of affecting venue. draft as action but, negligent injuries, these acts and Act, §§ As under result, accomplish agencies, in order 132, 135, written to be must a draft an culpable supersede original entirely must acceptor binding, responsible act, and be themselves an action of a draft is not injury, and be of such a character hence, draft, and drawer anticipated could not have the foreseen or acceptor ain resided where the wrongdoer. required agencies If it both resided other than that in which produce result, to thereto as concurrent assistance of one will not because it would still be if both contributed begun, it must as to and action be forces, presence and Sayles’ transferred, Ann. Vernon’s under exculpate other, April 1918, amended St. art. Civ. the efficient cause Supp. (Vernon’s Ann. St. injury.” Shippers Davidson, Co. v. allegation 1903), regardless of art. App. 558, 1032; Railway Civ. Cardwell, Gowan, up setting estopped acceptor Pullman Co. v. Mc acceptor frauds; for, as the City of Louisville laying party, venue Ky. Hart, L. S. W. 35 R. A. could resident not a of which was (N. S.) 207. justified. not be quotation [27] The last above is from Pleading <§=> and 110—Facts very high Appeals, Court of Civil but it cites privilege. conclusive on are authority. presents, think, we the rule facts, of of averments not the It is the and which clearly understandably, concurrent and acts plaintiff’s pleadings, a determinative any attempt under without at subtle refinements. and when Sayles’ art. St. Ann. Civ. In this case was no em Vernon’s there April 2, Ann. Civ. as amended ployer committing a different act at a differ priv- 1903), Supp. 1918, asserts the St. place. injury time and ent of the result i$ county, is en- ilege another superior. negligence the same Be the cause of law a matter titled as of troverting bave more, acts these one or several acts con con- unless action transferred place curred at the same and at the same alleges, testi- cleavage do think the time. We hot line of contrary. mony proves plainly between the two acts is so discerni Court, Appeal from District Smith Coun- sepa them ble as make Warren, ty Judge. ; R. J. intervening, acts, rate latter and the injury. They alone were in ac National Bank of caused the Action the First place time, Hughes Springs against tion at the same at the same Tom superior, by through Merchants’ Planters’ Bank of the fault the same judgment sustaining injury injury Winnsboro. From a which might water, resulted. grease have occurred without last nam- grease ordering cause, plaintiff but the and water would not ed transfer of operation appeals. into have been the time Affirmed. by appellant place against appel- The suit it was but for the defect which pass impelled Sanford,, over it. lee who resided in Smith assignments The other we think and Bank Merchants’ & Planters’ State original opinion. 'disposed Winnsboro, corporation, of in Some whose perhaps place an- the matters will not occur on of business was in Wood rehearing petition appellant alleged The motion for will trial. that it was the other granted, judgment unpaid and the of affirmance aggre- Be ordered trial court owner gating $1,519.61 drafts for amounts judgment aside, and the Sanford on said reversed, bank, the cause .remanded Winnsboro fore the and then that be- trial. another drawn and before .for Key-Numbered topic Digests other see same in all cases KEY-NUMBER and Indexes *2 Tex.) BANK v. NAT. SANFORD FIRST ;.w.) draft, where either the or of a it drawee paid assured bank same the Winnsboro pay, accepted, agreed to or drawee has quoting, “promptly “all drafts pay,” it would orally, to either in or said draft to promised on drawn it party cashing ac- faith of said same (appellant) pay money such sums ceptance promise pay drawee.” to might pay out plaintiff (appellant) as cashing then It said drafts.” in support presented of the contention so quoting pursuance,” fur- “in that it National Bank Henrietta cites - agreement on ther, promise and “of said Bank, State National Tex. (Winnsboro) bank Rep. holding “a 26 Am. St. as (appel- accept said drafts to promise accept to to a draft tantamount lant) aforesaid.” as said drafts cashed Schroeder, acceptance”; an Neumann v. said reason then, And it holding that S. as “an. promise bound it “became Winnsboro bank’s promise pay oral to a draft pay in said sums and liable frauds”; First Guar the anty Hull specified.” By in com- drafts said Bank, holding 199 W. as requirement pliance with the acceptor of a draft “drawer and 1903), Statutes, Winns- tRe jointly liable and suit thereon be right the case claimed boro bank county maintained of ei of residence asked in Wood it tried ther”; Creosoting and Southern v. Chi Ap- to that it be transferred cago Co., Railroad Alton & replied by pellant in which (a case), holding Missouri that “the re petition, allegations al- in his iterated quirement Negotiable jointly leged bank Winnsboro writing acceptance Act an that’ shall»be pay the drafts. with Sanford to liable change making does an the rule oral record from the promise accept acceptor, valid and the appellant’s the facts jointly pay liable with the drawer true, controverting plea and its ee.” We do not doubt the correctness of promise pay, set forth and that “the holdings the of in the statement brief as to the plaintiff’s petition contro- the courts first men three cases plea, verting appears itAnd was an oral tioned; opinion but as we understand the .agreed: parties further Creosoting court Southern (appellees) “(1) would the defendants That Chicago point ap Alton Railroad appellant’s except petition, on trial lo pellant mentions as there was decided merits, plead specially that said the petition and would before the court for decision and on account no cause of action question promise in that was as pleaded to decided. an of the fact that it petition. pay set forth the draft to whether certain letters written plaintiff (ap- “(2) That in answer question be drawee draft should estop- plead pellant) ped by to would acceptance construed the draft. an promise that in the reason of the fact holding of the court" pay usual and these drafts followed should be construed. so customary vogue time be- course in (the banks, provisions pertinent tween agree- pursuance hank) of that Winnsboro ment prior (General Instruments Act referred to Laws previously three other had 1919, p. 190) are follows: nonpayment one set forth that, sig- plaintiff’s petition, acceptance “Sec. 132. The of a bill is a pursued between conduct course of nification of his assent to the fact plaintiff these the acts and drawee acceptance in the and the order of the drawer. The believe, signed writing was led to be drawee.” unconditional, defendant, conduct “See. 135. An writ- pay ing draft sued the said bill before it is is deem- the defendant upon presented every per- fayor other words ed an actual —in estoppel.” thereof, son who . faith receives bill for value.” Winnsboro sustained below ac- the cause of and ordered bank’s far So as we are advised the transferred it to be tion asserted effect the statute has not Hughes Springs whereupon Wood directly appellate determined appeal. prosecuted this bank state, courts of this preme Court, but we think the Su opinion by Atlanta, appellant. Carney, Hugh Chief Jus “ Stayton 81, Schroeder, Winnsboro, appel- Oarlock, tice in Neumann v. M. H. clearly above, referred lees. decided, when, indicated how it should be WILLSON, (after stating facts C. J. following, criticizing regard .but the rule it above). proposition appellant’s [1] The established, wit, ed as that a verbal ac as follows: ceptance brief a check or bill exchange maintained and the venue was not within be “A statute frauds, laid residence of said: (Tes. SOUTHWESTERN REPORTER 228' Legislature again upon “If that would loose the business world yerbal acceptances promises designed of to bills evils the statute was to re- press.” exchange ought and like instruments declaring sustained, will doubt- a statute so *3 enacted; but, of less a in the absence such obvious, ruling It if tbe made in the statute, to de- courts are not authorized is, correct, cases cited that and we think it part con- seems to be the settled what appellant could not maintain order that an- struction of the statute of frauds against appellee prom- on the latter’s verbal reach seem to be an evil what accept pay upon, ise to or the drafts ** * other and better construction would therefore was not reached.” to the suit on the and hence But been before has the trial court did not he err when states, in each of several of the and courts instance has been determined appellee’s plea. sustained to the con judgment is affirmed. thought appellant trary the Mis of what Oreosoting Company’s souri eburt held in the (dissenting). J. In HODGEÍ-j, this case the Bank, 257, Pac. Case. 88 Kan. 128 Rambo v. plaintiff sued both defendants 183, by court; Kansas Mc Hanna v. county. Sanford, It one of the Crory, 996, 183, by the 19 N. M. 141 Pac. defendants, county; resided in that court; Drug New Mexico Town v. Site Co. appellee, defendant, the other had its 185, by 400, 20 M. Pac. also N. 147 stating domicile Wood In court; Ry. Bank, Mexico New appel- of Sanford the 753, 837, by Virginia Va. court: 47 S. E. alleges drawing lant form 50, Turnpike Co. Gooch, and 113 Miss. v. by upon ap- a number of drafts Sanford 869, by Mississippi court. South. money pellee bank, and the advancement of disposing appeal first upon appellant himto those drafts.
cases mentioned the
said:
payable
Some of the
drafts
drawee
liable on the bill unless
“The
parties;
appellant, and
to other
some
accepts
Accept-
and until he
it. Section 134.
all
them were cashed
signification by the
Ms
ance is the
drawee of
for the benefit of Sanford
his assur-
accept-
drawer,
assent to the order of the
and
accepted
the drafts
and
would be
ance.
signed by
writing
ance must
the drawee.
paid by
The,
the Winnsboro bánk.
drafts
Section 139. Gen. Stat.
5385.
§§
accepted
duties,
rights
neither
nor
werte
and
relates to
and
Section 134
remedy.
joining
to form of
It means that
bank. As
basis for
pay
obligated
un-
the holder
drawee
the Winnsboro bank as a
plaintiffs
accepts,
and'
and
less
until
Sanford,
plaintiff alleged
as fol-
with
gain nothing
‘on
saying
do not sue
lows:
bill.’
by saying
prior
drawing
they gain anything
drafts
“That
of said
“Neither do
upon equitable
them,
they ground*
Tom
San-
or
the defendant
N.
their action
that
considerations,
mining
equity
engaged
law
ford was
the business
since
follow
Hughes
gravel
Springs,
county,
county, Tex.,
Legislature
near
has inter-
Cass
cases which
all
gov-
Tex.,
shipping
prescribed
the same to Wood
rules of law which
and
vened and
drawing
Tex.;
prior
rights
parties.
and
ern the
“
payment
although
check
aforesaid
uni-
of said
and
drafts
‘The established
plaintiff
equity
application,
informed
follows
versal
law,
arranged
Thompson,
Magniac
or,
Tom N. Sanford that he had
with
v.
696), “that,
Merchants’ & Planters’ State
L. Ed.
wher-
15 How.
Bank, Winnsboro, Tex.,
rights
all drafts
or the situation
ever
clearly
mining
equity by
engaged
Idw,
while
said work
established
and
defined
rights
shipping
change
gravel
and
power
same to Wood
or unsettle those
no
has
situation,
cash
he would
draw and
such instances
want
in all
or that
expenses
strictly
payment
sequitur legem
equitas
his
drafts for
maxim
* * *
work;
pursuance
equity
that in
thereof defend-
applicable.”
more
no said
Courts
can
plaintiff
that said
disregard
Sanford assured
constitutional re- ant
paid upon presentation
promptly
provisions
of
of
quirements
than can courts
would be
plaintiff
positive provisions
bank;
communicated
They
are bound
law.
defendant,
and,
law,
Planters’
equally
Merchants’ &
where with
courts
said
with
a statute
the transaction
because
tory
Tex., prior
Bank, Winnsboro,
is declared void State
or the contract
express
drawing
compliance
drafts and check
said
statu-
defendant,
aforesaid,
provision,
and said
Merchants’
a court
or constitutional
validity
Bank,
interpose
give
assured
equity
to such Planters’
cannot
promptly
any part
all drafts
contract,
care of and
thereof.’ would take
transaction
Hedges
County,
said defendant
drawn
promised
159 U. S.
Dixon
pay plaintiff
sums
Sup.
L. Ed.
Ct.
cashing
might pay
out
no
Act entailed
“The
pursuance
they might
drafts;
of said
plaintiffs,
that in
hardship
said
and
bank
easily
agreement
check, might
of said defendant
on the
certified
have asked
have obtained
per-
acceptance,
cashed
said drafts
and to
lawful
theory proposed
aforesaid.”
drafts as
said
to recover
them
mit
n
BANK SANFORD
NAT.
Tes.)
FIRST
(228 S.W.)
al.,
Winrisboro Henson et
In its
attacking
place
any pleading
of In the
absence of
domicile
that its
bank
business
petition upon
and that
false
in Wood
representations
made for
resident of
time a
jurisdiction
none
over
local
further
defendant,
in Wood coun- a
the averments
exclusive venue
exceiotions
ty
original petition
to in
1830 or article
the
determining
be looked
in article
will
mentioned
existed
nonresi-
or not such
Civil Statutes
whether
the Revised
of
that case.
affidavit,
controverting
dent is
sell & Co. v.
Rus-
the suit.
In its
Heitmann,
repeating
the .facts
Dub-
the substance
after
based,
appellant;
Robinson,
lin Oil
Kempner Vaughan,
suit is
*4
did
W.
Sanford
v.
174 S.
averred that
side
agreement
any
county.
plea
privilege
charge
filed
did not
facts,
contains
which
the
false or
averments made for the
the
as to
purpose
jurisdiction upon
following:
county.
district
of Smith
It contain-
may
plea
and
privilege
agreed
that this
“It
merely
ed
an averment of the
upon
upon
pleas
the contro-
be heard
any
pleader
in the
verting pleas,
plaintiff’s petition
of the
denial that
formal
the facts
plea
plaintiff’s
exceptions
and in the
of the
the venue statute exist-
to
conceded
plea-of .privilege are taken
controverting said
appellee
plaintiff
ed. -The
was
that the
upon
plea
passing
this
domiciled Wood
promise
agreed
that the
further
true.
pay
tiff’s
It is
Sanford,
codefendant',
that
Smith
resided
plain-
petition
forth
put
This latter averment was
plea
controverting
oral
anwas
appellees’ plea
privilege.
in issue
agreed
upon
prove
statement
It then devolved
From this
against
Having
defendants
the truth of that
done
one-of the
averment.
that
whom
a resident
stated,
this,
agreed
good
was
was
of action is
in the
statement
cause
conceded
to,
county
suit
where
the venue
facts above referred
of
Smith
brings
county
pro-
case
this
under the
That fact
was sustained
filed.
very
exception
article
If
4 to article 1830.
terms of subdivision
visions of
the
might
appellee
provides:
be
in that
suable
which
the-original
in the
action
defendants
more
two or
there are
“Where
petition,
district court
counties,'in
case
residing
which
in different
any county
may
forum for the de-
then
termination of all other
due order of
after a
became the
suit
be
questions
resides.”
defendants
in'
one of the
which
pleading
properly
come
refusing
assigned
only
for
pleas
such as other
exception
is that
apply
this
abatement,
general
special
demur-
original
facts,
averments
not the
liability
rers,
pleas in
as well as
bar.
any liability on
petition,
the
to establish
fail
the demands
of the nonresident
the debt
part
bank for
of the Winnsboro
inquired
was matter
This con-
on.
the' draft
evidenced
clusion
that
up-
the evidence adduced
into and settled
agreed
upon the
statement
is based
hearing.
answering
on a final
Before
part
that bank
promise on
pro-
merits
Sanford was
drafts drawn
to
an oral
suit,
priety
joining
it was not
him in
or attack
promise,
therefore
.of
existed,
legal sufficiency
now
law as it
under the
liable
acceptance of
provides
purpose,
im-
for
the written
and' thus secure
tion for that
grounds
munity
if en-
those
drafts.
from suit
assuming
Conceding
it.
that the ultimate
bank is sued titled
But
subject
acceptor,
liability
inquired
as an
of the defendant should be
determining
only,
that it fails
a demurrer
to
to
state
into
the issue of venue
acceptance,
allege
liability
shown,
a valid
it does
I
am
pleaded
promise
pleadings
was oral
whether the
not
but
prior
(cid:127)
averments,
Tinder such
or written.
facts.
It is admitted that
prove
plaintiff might
advancing any
money
that it
inwas
to Sanford
Ry. Co.,
707;
expressly promised
18 W.
Robb v.
S.
had
(not accept)
Campbell,
Harvester Co.
International
Tex. Civ.
v.
it would
drafts drawn
93;
App.
Fahey
S.
v.
96 W.
also
Sanford.
admitted
in con-
Hence,
Benedetti,
if we look
sideration of
the amounts sued
plaintiff,
to the
boro
the Winns-
thereafter
for were
advanced
to Sanford.
agreement by
co-
bank was
with its
We then have an oral
primarily,
defendant
Masterson,
Cardwell v. the
bound-itself
not asa
App.
surety,
thé
Tex.
66 S. W.
to reimburse
for all
1123;
Ry.
McKnight,
obligation
L. S.
St.
99
92
advances. The
to make
those
755;
Barber,
very
Cobb
arose at
time Sanford
963;
Ry.
dependent
money,
47 W.
T.
& P.
Co. v. received the
(Tex.
REPORTER
228 SOUTHWESTERN
65á
'appears
ter
the
pany
because
action
gum,
the suit
for the
in Tarrant
who resided Harrison
be
question
ble,
of both
was
domicile
tion,
arose
sponsible
nonresident was
statute.
Stay
The
county;
rule announced in T.
been advanced
had been
not
ford,
179
agreement
him.
promise
ty
Bank,
not available under
that would
the
one to the
Robb
be
411.
defendant
special pleading.
one to
own
v.
son et
that
waived. Edwards
*5
Co.,
and must
to the evidence
enforceable,
If
But
Norman,
notifying
a
of the
presented by
enforced in the
meaning
urge
meaning
ton,
question
advanced to Sanford. Each
S. W. 932. Under
the record shows
ruling
bankruptcy
party
debt,
tbe
It has been
at
even
That
al.,
<S=Eor Indexes