77 S.W.2d 929 | Tex. App. | 1934
(after stating the case as above).
It is believed that on the facts disclosed by the record it may not be held that the bank was relieved of its liability to pay the appel-lee lodge the deposit balance of $365.72 because it had paid it out on checks drawn against it by E. L. Tucker. Therefore the court did not err in peremptorily instructing the jury to return a verdict in favor of the lodge. That is the question in the appeal.
The facts are conclusive, and not in uncertainty, that K. G. Irving having legal control of the funds of the local lodge, in virtue of being the elected treasurer and under bond for their safe-keeping and forthcoming, deposited them from time to time in the bank, and so entered in the books of the bank in an account in the name of (‘K. G. Irving, Treasurer, I. O. O. E.”; that on April 6, 1932, a balance of $365.72 appeared in the account to the credit of K. G. Irving, treasurer, I. O. O. F., and such deposit was by the bank at the direction of E. L. Tucker, an acting Special Deputy Grand- Master, changed and transferred from such account to another account in the bank under the name of “Wm. Tell Lodge #27, I. O. O. F., by E. L. Tucker”; that after the change and transfer into the other account named the bank paid out the deposit on checks against it given by E. L. Tucker; that E. L. Tucker, an acting Special Deputy Grand Master, was not by the lodge or K. G. Irving as treasurer or individually given any control over the particular deposit or given any authority or Consent to make the change and transfer of it to the other named account; that E. L. Tucker was without any authority from the lodge or K. G. Irving as treasurer or individually, either before or after the transfer, to check against the particular deposit.
It may be conceded that, as a general rule, it is the duty of the bank to pay money on deposit with it to the party in whose name it is deposited. The law presumes that a deposit belongs to and is the money of the person in whose name it is entered, and the bank cannot, as between the bank and the depositor, question his right thereto, and may lawfully pay it out on his demand or check. That is settled by our decisions. Interstate Nat. Bank v. Claxton, 97 Tex. 576, 80 S. W. 604, 65 L. R. A. 820, 104 Am. St. Rep. 885; Silisbee State Bank v. Grocery Co., 103 Tex. 629, 132 S. W. 465, 34 L. R. A. (N. S.) 1207; Waggoner Bank & Trust Co. v. Warren, 111 Tex. 318, 234 S. W. 387. In the setting forth this applicable rule of law it becomes evident that the bank was entirely without legal protection in changing the deposit balance of $365.72 from the account of K. G. Irving, treasurer, to the other account named at the direction of E. L. Tucker. It was not subject to change and transfer to the other account unless upon the check or consent of K. G. Irving treasurer, or the lodge as true own$r-in fact of the deposit. Neff v. Greene County Nat. Bank, 89 Mo. 581, 1 S. W. 747. While a ■bank deposit is ordinarily regarded as a matter transferable from one account to another, yet the bank fails in its legal duty towards the particular depositor in making such transfer without sufficient authority to do so. 7 O. J. § 328, p. 642. Otherwise the withdrawal or change becomes wrongful. And in this particular case there was absent any consent or authority to the bank or E. L. Tucker from either K. G. Irving as treasurer or individually or the lodge as true owner to make the change or'transfer as done. It is equally true, there being absent any consent or authority to the bank or E. L. Tucker, that the bank, after the transfer to the other account named, could not have paid out a dollar of the particular deposit balance upon the check of E. L. Tucker. The deposit of lodge money in the name of “Wm. Tell Lodge #27 I. O. O.
The judgment is affirmed.