Morris County Nat. Bank v. First State Bank of Naples

245 S.W. 86 | Tex. App. | 1922

^* Writ of error dismissed for want of jurisdiction January 17, 1923. In the first assignment of error it is insisted by the appellant that the court should have suppressed and excluded the depositions of R. E. Weaver. It appears that the depositions were taken at the instance of the plaintiff, and that under the notary's directions the attorney representing the plaintiff acted as a typist and reduced to writing the answers of the witness The attorney acted merely as a typist. While there was no attempt on the part of the attorney to do anything in any way to influence the witness in his answers, and while there was no sort of wrongdoing in taking these depositions still, as a matter of policy, the courts should, we believe, suppress all depositions where in the parties to a suit, their agent or attorney, act in a capacity of clerk or typist in taking the depositions of a witness in a case. But in this particular case the witness was placed on the stand in the trial, and the parties got the full benefit of his oral testimony. Therefore it could not be said that the failure to suppress the depositions was so material an error or injury as to require a reversal of the judgment.

In the assignments of errors numbered 2 to 6, inclusive, the appellant assailed the court's findings of fact Nos. 4, 5, 8, 10, and 12. There is evidence to support these findings, and we do not feel warranted in setting them aside. The evidence on some of the points is conflicting. Therefore the several assignments of errors are overruled.

The seventh assignment of error assails the court's conclusion of law in respect to the facts. It is evident that the court was holding, in the facts found, that the First State Bank of Naples was, between said bank and R. E. Weaver, the beneficiary of the proceeds of the sale of the cotton and entitled to such money, and that the appellant bank had notice of the claim thereto of the First State Bank of Naples, and therefore "could not hold the proceeds of the fourteen bales of cotton." In other words, the court was ruling that R. E. Weaver was holding the funds in trust for the First State Bank of Naples, and that the appellant bank, so knowing, could not legally hold the money collected by it, as the money in this case was collected, and credit it on an overdue debt owing to it by R. E. Weaver. According to the evidence in the case, R. E. Weaver, a cotton buyer, sold 42 bales of cotton to Rash-Brin Cotton Company and 125 bales of cotton to the Turner Cotton Company. The cotton sold in each case consisted of a list of cotton, or "pool," owned and claimed by several parties. In the lists was some cotton on which the appellant bank had advanced the purchase money to R. E. Weaver. Also in the lists there were 14 bales on which the appellee bank had advanced the purchase money to R. E. Weaver. In the court's finding of fact the appellee bank at the time of "the pool" and sale of the cotton was a mortgagee in possession of the cotton to secure $1,142.63 advanced to pay for the cotton. Although, as the court finds, "the plaintiff bank did not know that the 14 bales of cotton were being sold by R. E. Weaver at the time they were sold, and did not know until after the sale was made and the draft drawn," still, as the court further finds, "it was a custom with the banks at Naples," "and it was generally understood, that the banks would retain the certificates (of the cotton weigher) and would permit the cotton buyer to ship the cotton in his own name, and the bank would retain the certificates and collect the proceeds of the draft." "The Morris County National Bank," the court expressly finds, "well knew this custom at such time." After the sale of these lists or "pool" of cotton R. E. Weaver drew drafts for the purchase price of the cotton on the purchasers and attached thereto bills of lading covering the cotton. These two drafts were, as found by the court, "deposited by R. E. Weaver with the Morris County National Bank for collection," and in due course of time "these drafts were paid upon presentation to the buyers, and the proceeds remitted to the Morris County National Bank." The 14 bales in controversy were sold for $991.54. "After the draft had been paid," as the court finds, and, according to the record, when the money came back on the draft, R. E. Weaver gave the appellee bank a check for the $991.54, drawn on the Morris County National Bank, to be paid out of the proceeds of the cotton sale. The appellant bank refused to pay the check on its due presentation for payment, claiming that the money collected had been by it applied on the debt of R. E. Weaver. There is evidence to support the court's findings that appellant had "notice of the claim of the First State Bank of Naples" at the time and before the drafts were sent for collection.

In these findings the doctrine of equitable set of would not have application. The appellee bank had the legal right, in the facts, to have the money paid over to it. First State Bank of Bonham v. Hill (Tex.Civ.App.) 141 8. W. 300; Live Stock Commission Co. v. North Texas. Trust Co. (Tex.Civ.App.) 212 S.W. 278; Shotwell v. Bank, 34 S.D. 109,147 N.W. 288, L. R A. 1915A, 715; Platts v. Bank, 130 Minn. 219, 153 N.W. 514.

In the above assignment the appellant bases its contention upon the ground that it had no notice or knowledge of any claim or interest of appellee in the cotton or money, and that R. E. Weaver voluntarily paid the money over on his debt. But there is a conflict in the evidence in this respect, and the trial court's findings are binding and cannot be set aside.

The appellant next insists that the court erred in rendering judgment for more than $678.77, upon the ground that R. E. Weaver had no interest in $312.77 representing 4 bales of the cotton. This contention cannot be upheld, we conclude, in the facts. Both the bank and Weaver had an interest in all the cotton, and with "notice" of such interest the appellant could not hold the money.

Judgment affirmed.