68 S.W.2d 351 | Tex. App. | 1934
The first and principal point for decision is that of whether or not the alleged transaction was in the circumstances a bailment to the bank as such, imposing a relation of duty or trust in respect to the bonds and with legal responsibility for their loss.
The material facts affirmatively appear without dispute that the guardian, a general depositor in the bank, requested the cashier of the bank to purchase for his ward's estate United States Liberty bonds to the amount of $2,500; that the cashier purchased the bonds, and the guardian as such paid "the bank" therefor through a check drawn by him against the deposit account of the funds of the estate; that the guardian, upon paying for the bonds, did not take over the same, but left them in the bank in possession of the cashier to be kept in the bank vault for him as guardian for safe-keeping merely, and to be returned to him when he should require it; that the bank provided and maintained, in connection with the banking business, a safety vault for use by general depositors free of charge to store valuables for safe-keeping merely. It appears from the undisputed evidence in relation thereto by necessary inference, as a matter of pure fact, that the cashier of the bank by intention and purpose was acting at the time for and in behalf of the bank in receiving and placing the bonds of the guardian in the bank for safe-keeping merely.
It is clear from the facts stated that the Liberty bonds were the absolute property of the estate of the ward of which appellant was the duly appointed and qualified guardian. The bank had no lien upon them or special property in them. They were not deposited or held as security for or in connection with any business transaction of the bank as a banking corporation, either present or prospective. It was a simple delivery of the particular government bonds to be kept for the guardian as such as the proper legal custodian thereof without recompense, and to be returned when the true legal owner or holder entitled to possession should require it. This is the legal definition of a naked bailment. 3 R.C.L. § 187, p. 560; Shouler on Bailments, pp. 55-57; Kegan v. Park Bank,
A bailment of the bonds to the bank as such, through the cashier acting for and in behalf of the bank, having been established, it became the duty of the bank to observe and respect the bailment and not misuse or fail to seasonably return them when demanded. 5 Tex.Jur. § 18, p. 1029. In the claim of failure of the duty of the bailee bank and that a loss was caused by misuse and want of care, proof was offered to show the fact and manner of the loss. It was shown conclusively that in the fall of 1930 the guardian wrote a letter to the cashier requesting the return to him of the three bonds, and the $500 bond was delivered, but the other two were never returned. That, as shown by the records of the bank, on November 13, 1930, the cashier, in order to protect an overdraft caused by charging to his account two checks of Mrs. Seay each in the sum of $600, took one of the $1,000 liberty bonds in the vault for safekeeping and belonging to the guardianship and placed it in the note case of the bank, which contained and held assets of the bank as such, and *357
at the same time gave his personal account at the bank credit for $1,000 in reduction of the overdraft charge to his account. That, as shown by the records of the bank, on November 18, 1930, the cashier took $1,000 in cash out of the money belonging to the bank as such, and took the other $1,000 Liberty bond there in the bank vault belonging to the guardianship, and placed it in the note case of the bank, which contained the assets of the bank as such including the other $1,000 Liberty bond. That the cashier attached to each bond, when placed in the bank's note case, a yellow slip of paper with the words "subject to be redeemed on payment of four and a quarter per cent by May 1st," meaning May 1, 1931. Under the circumstances stated, there has been established in favor of the estate of the guardianship the liability of the bailee bank for the value of the bonds which have been lost to the estate. There are the factual elements of a proper and timely request by the guardian of the estate of the lunatic for the return of the three bonds in bailment to the bank as such, and the delivery of one of the bonds, and the failure to return the other two. That the cashier of the bank had subsequently taken the two bonds from their place of special deposit with the bank, and placed them with the general securities and assets of the bank in the purpose of a pledge to secure the transfer of funds of the bank to him, and his personal indebtedness. That, although the cashier in placing the two bonds with the assets of the bank did so with the purpose to subserve simply his own personal interest, yet he wrote plainly on each bond the words indicative of what he had done in his behalf of "subject to be redeemed on payment of four-and-a-quarter per cent by May 1st." Clearly there was a misuse and detention of the two bonds, as against the estate of the lunatic. It is evident that the placing of the bonds with the assets of the bank and pledging them as security for personal indebtedness of the cashier due to the bank was a use of the bonds in a manner not contemplated by the parties to the bailment. The cashier nor the bank as such had been given no authority to do so. The guardian did not know of, or acquiesce in, such use of the bonds at the time. And the placing of the bonds with the general assets of the bank and with the notation thereon of the words mentioned would of itself operate as notice to the bank of an act inconsistent with the bailment and of a misappropriation. The special deposit being in the first instance by the guardian of the estate of an insane person, and the bank having constructive notice thereof, the bank could not take the bonds, as done, as a pledge of security for debt of either the guardian personally or any other person. Moore v. Hanscom,
The doctrine that a bank whose officer fraudulently appropriates funds of a third person and uses them in settlement of his own overdrafts against the bank is liable to the party defrauded is supported by the weight of authority. Knobley Mountain Orchard Co. v. People's Bank,
It is the rule that evidence of a demand and refusal or failure is sufficient to throw upon the bailee the burden of showing the absence of any fault or negligence on his part, and of showing why he should not deliver upon demand. 5 Tex.Jur. § 29, p. 1029. The remaining question, then, is that of whether or not there is exculpatory evidence, having the legal effect to justify the bank and to deny a right of action to the estate of the insane person. The circumstances in that respect are that in May, 1931, after the time marked for the redemption of the two bonds, and after the cashier demanded of W. J. Moore the redemption of the two bonds, W. J. Moore, acting through J. T. Harper, arranged with the Liberty State Bank to loan him the sum of $2,000, with the two bonds as collateral, to pay over to the appellee bank; that W. J. Moore drew a draft on the Liberty State Bank in favor of the appellee bank for $2,000, and directed the cashier of the appellee bank to attach the two bonds to the draft and send it to the Liberty State Bank for collection, which was done, and the draft was paid and appellee bank received the proceeds of the draft. Neither the bank nor the estate of W. J. Moore has accounted to the estate of the lunatic for the two bonds or their value. In such facts the conclusion, upon legal principles governing, would follow that the bank was not justified in parting with the possession of the two bonds. The cashier of the appellee bank having full knowledge at the time, and his knowledge being legally imputed to the bank, that the former cashier intended to use the two bonds for his individual benefit as collateral to his personal note made to the Liberty State Bank, then, in surrendering the two bonds to be attached to the draft on the Liberty State Bank under such conditions and with such notice in the purpose of receiving the money, the appellee bank would be deemed to be a participant and aiding in the misuse of the two bonds. In doing this the appellee bank would become liable to the estate of the lunatic, suing for the loss. The bank, in taking the proceeds of the draft, and in applying them in cancellation of the claim against the former cashier, has profited by the misuse of the two bonds, at least to the extent of the interest paid on the amount of such claim charged for its use. On principles elementary a national bank receiving benefits therefrom may not plead an ultra vires act or contract of its officer, even should it be held ultra vires. Logan County Nat'l Bank v. Townsend,
The conclusions above upon the legal principles governing the case result in reversing the judgment and here rendering judgment in favor of the guardian against the defendant in error bank and the estate of W. J. Moore, deceased, jointly and severally, and in favor of the defendant in error bank over and against the Ætna Casualty Surety Company upon its fidelity bond, for the sum of $2,000, with legal interest thereon from May 1, 1931. That the estate of the lunatic may have recourse on the guardian and his sureties does not interfere with the prosecution of this suit. Hampton v. Hampton,
The judgment is reversed and rendered.