Rodgers v. Farmers' Bank of Nolanville

FARMERS’ BANK v. OF NOLANVILLE RODG-ERS (264 S.W.) appellee’s @=78 Assignment banking of counsel tained tlie 5. Banks and — assigned deposit in bank, bank, against another question, on this of error to include ail and held outstanding notwithstanding checks ruling. taken is not well This deposit. sdch issue under material not Assignment by bank- for benefit of creditors appellee pleadings- Pat- as to what ing partners credits, indebtedness, of all claim. for this rick estate as- claims other banks in favor assignments of error are There signors, deposit anoth- include all of held evidence, introduction reference notwithstanding against, er checks examined, carefully which we deposit yet presented. merit, over- no which find @t=49 Assignments 6. of check not —Issuance ruled. assignment of fund on which drawn. of the case trial Finding error against particular of' Issuance opin- reversal, is the for call that would posit not to amount in held law to judgment should of the court ion portion thereof. he affirmed. Rehearing. Affirmed. On Motion for — Appeal @=747(2) 7. error Failure of party successful below to make formal cross- assignment late preclude appel- of error does not looking findings beyond OF BANK court v. et al. RODGERS making 6769.) (No. proper disposition. trial al. et NOLANVILLE Notwithstanding general rule Austin. Appeals Texas. (Court Civil cross-assignments of error will be consid- Rehearing Denied 5, 1924. June appeal, ered on filed in 1924.) 5, July failure of a successful in the trial court exception up to follow to adverse @=171(2) banking —Bank Banks 1. fact and conclusion law with formal cross- mere hy held drawee forwarded which preclude appel- of error does not collection. for beyond looking findings late court from of fact payee bank Correspondent determining proper disposition drawee forwarded of case. agent for collection. deposit, mere held @= Appeal 1177(8) Appellate 8. and error — — @=171 (2) Bank' as banking 2. Banks power findings court has aside set and con- loss re- for is liable collection for toto, clusions of trial where error in negligence manner sulting from part. handling^ reaching proper In interest disposition agent for collection handling check as ease, appellate court, setting after find- aside negligence resulting from loss for is liable ings and conclusions part, of trial court in handling. manner power to set 'them aside in toto. @=171 (I) banking held —Check Banks correspondent though Appeal Court, from District County; Bell drawee. account Jones, Judge. Lewis H. by payee to corre- forwarded Check Rodgers Action A. Mrs. J. and others had funds drawee insufficient spondent against the Farmers’ Bank of Nolanville though in amount deposited check, others. From rendered, to the drawee’s Mrs. A. J. payment, and Rodgers appeal. for to it forwarded and others account Reversed in subsequently “paid,” stamped trial, drawee and cause for remanded new dishonored, held returned part affirmed. in hands of drawee funds entitle Hubbard, Belton, Dougher- Jas. B. P. H. correspondent bank. ty, Temple, Jones, Roberts Mon- & banking @=¡171(1) held 4. Banks —Check appellants. teith, Houston, meaning Nego- “paid” of Uniform within Talley, Temple, appellees. J. B. though Act, not returned tiable receipt. after 24 hours within drawee j. McCLENDON, C. arose out of correspondent bank, act- Check following facts: agent, for collection drawee, Will and forwarded drawee Rancier and E. subsequently dishonored, returned partners, conducting pri- Negotiable “paid” In- Uniform banking Nolanville, vate busines at Bell coun- 89, 119, 137, Act, 88, Civ. 185 and 191 §§ struments ty, Tex., under the name Farmers’ Supp. (Vernon’s 1922, Ann. St. arts. which institution will be referred to as the 89, 119, 137, 88, 6001— 6001— 6001— 6001— Among 191), though not returned 6001— 6001— Rodgers the bank were Mrs. A. J. and a num- more drawee until others, will be who ber of referred receipt. plaintiffs, aggregate amount whose de- definitions, [Ed. see Note.—For Words posits $2,274.76; F. E. Pay- whose Phrases, Series, First and Second and ment.] $4,645.23; posit Partain, L. M. Digests Key-Numbered in ail topic cases @=Eor other see and KEY-NUMBER Indexes- SOUTHWESTERN REPORTER .492 deposit bank, every character, On date $519.20. whose Box $4,000, to Ben S. ior as on the Nolanville Bank drew check trustee for the benefit of all of the positors Bank of of First National in favor of the bank. This also Layne Lometa, will be to as the which referred transferred to as trustee all as- the deposited bank, the Lometa sets the hardware business for benefit the business; The latter bank for collection. the Lometa of that in- creditors the reciting depositors Bank of First National check to the the strument the the sent Temple, p>aid the will be referred to as bank should be first out the assets Temple bank check reached that bank. The business creditors of 8th, paid on same date on October hardware business be first out charged Temple business, any the amount of' bank assets of that bal- bank, and credited ance from check to amount either business was to be bank, and sent to the creditors of On business. pay- Layne bank for 13th, cheek October direct trustee redelivered evening ment, arriving Temple bank, it cheek at banking marking 8th. pencil October hours of time out stamp. bank, acknowledging bank Lometa bank at once amount, bank, receipt and credit of the the amount check to the the check Lometa stipulated as follows: and credited the amount to the Nolanville bank, n transferring the ac- by bank for this “All received items Layne express returned the condition are taken collection or bank, advising for the check to the be liable Lometa that bank bank this that acts of banks, any or col- 8th, omissions at wire of its action. On October be thereafter items whom the lectors to transmitted of companying the time bank transmission, either for loss or cheek, bank ville or attached thereto or documents items bank had to its credit proceeds same, or of $3,294.49, debit of and the the Box check liability being items; here- of this created an $705.51. therefore The the over draft of acts. limited to its own had, however, charged to any collecting parties, or inter- “Should the anywise bank, lose, mediary agency, stroy, account of the Nolanville on Octo- convert or items, delivery wrongful 6th, $4;201, make ber amount of or note which accompany- thereto or attached or documents plain- the Nolanville bank owed it. The items, proceeds same, tiffs, prior 7th, severally October drew payables are thereafter dishon- mit in ored, checks in favor of banks various or other from cause or should deposit in each for amount of his thereon, actually funds receive the bank, passed these checks been will be credit has for which back. through las, Dal- the Federal Reserve Bank at sending that bank to the were sent direct “We will use our discretion t£s to intermediary through lat- for Nolanville bank for items direct or banks acting only, issued, 7th, collection each case as ter October check in favor on being spondents responsibility to our corre- of the Federal Bank for Reserve the total of such for our exercise discretion. $2,274.76. cheeks, amount of these This check right payment of “We reserve the to refuse presented Federal Reserve Bank against checks advised herein until the drafts drawn the credits 9th, pay- on October final ment was In like refused. manner Partain receipt by actual us items funds deposit, drew a check the amount of his given.” for which credit bank, through a local which received it stipulation was shown be in accord- from Nolanville bank a check for the ance with the usual custom of dling banks han- amount dravfai bank. This Upon taking such collections. check was also dishonored mail, partners one appears was at Nolanville stamped “Paid,” the Nolanville bank it inquired 9th, Laynes on October placed hóok or file to be entered regarding check, and was told that day. books of the the next The thought taken care of. It seems would opened- morning 8 o’clock on the at of that at the time these conversations took ninth, Saturday, the opened which was remained place Laynes impression were under the finally hour, closing for one its doors sufficient funds at 9 o’clock. The was never entered the Nolanville bank to on the books of the Nolanville bank. About well as the checks that had been drawn noon, 9th, October bank learned that account in insolvency of the telephoned of the Nolanville and favor of Reserve Bank the Federal and Par- bank, advising Lometa tain, have been the would case but for $4,200 the latter had best the Box check as the fact note had been Tuesday night, paid. '12th, charged by partners of the Nolanville who al- account. was not This fact then known-to Nolanville, business had a hardware or was overlooked officials of the assignment of all later, assets of the Nolanville bank. time Some BANK OF NOLANVILLE RODGERS v. 3.W.) (264 checks the of tlie a dividend in favor trustee declared in favor of Re- and divi- the Federal of the Nolanville Partain; the serve Bank the if sent to dend check language sufficiently as shown of his full credit, broad to cover drawn had never been the entire it was of so hooks the by inistake, they prayed $4,000. was and in that check the event that Box, the instrument be reformed as afterwards Mrs. and Box so cashed pass to to propor- the trustee the excess held the return to trustee the to amount offered Temple the bank upon above of the the tionate of the of favor the Federal Reserve bank Nolanville to credit the amount of Upon Bank and Partain. the trial it was Temple bank. Eater dividends agreed by parties that concerned figured on the excess favor of Box of Temple Layne, bank had to credit his amount over and above the trustee for the Nolanville the sum Temple of the bank to credit Nolan- the ville bank. $3,294.39, might Temple and that bank registry that amount into the of the 13, 1921, plaintiffs brought April might or to whomsoever the owners the Nolanville as suit it; payment Temple cree in favor of of the check issued and holders discharged liability bank should be to from at the the Federal Reserve any costs, including of the its recover against, garnishment a writ time sued out attorney’s $50. fee of originally, Temple inor bank. Either The cause jury, tried was to the court without subsequent Layne pleadings, as trustee a favor of and the court rendered defendants, it was con- made Box were Box for the amount of the fund in by plaintiffs Box that had ratified tended recovery and denied to returning his the trustee in the action plaintiffs and Partain. filed find- Temple by receiving divi- bank to check ings of fact conclusions of in which deposit. I,ayne amount of his the full dends it held that circumstances above trustee, E. as Ben S. paid, detailed the Box check was con- accepted service, other- but did not Rancier sequently Box was entitled to recover intervened, appear case. Partain wise amount bank had at the asserting ownership of the fund held time credit Nolanville bank. the extent of the check The court further and held that found it was covering the bank had issued Nolanville the amount not the intention of the Nolanville bank to answer, deposit. in his assign to the trustee the amount to credit its was his asserted Temple bank, except in the in excess $4,000check, collecting and that of the checks which drawn in favor had that check was the amount the account Partain, the Federal Reserve Bank bank and cred- assignment reformed the instrument Lometa bank to the account ited cordingly. plain- From this the the marked Nolanville thereafter appealed, assigning tiffs alone have er- failed return check “Paid” holding ror the court that 24 re- payment facts constituted a Box thereby ceipt, in law the check cross-assigned check. Box has finding as error the to him the indebted the trial court that check, least the ex- amount assignment ihe instrument of should be re- bank had funds to the tent so formed amount exclude therefrom the further credit asserted checks drawn his answer if in fact the bank in favor of the Federal ville Bank Reserve paid, then the fund to the latter has and Partain. The passed Nolanville bank pealed. Layne assignment 12th to questions presented deci- two tee, the benefit of the First, sup- sion : port whether evidence will bank; he Box was a de- Nolanville finding that positor of said bank and interested in the paid;, so, second, and if whether the evi- assigned, prayed al- funds so and he support dence will and conclu- behalf of himself and other ternative creditors sion of the trial court that of the Nolanville bank that the of the should be reformed. bank to the credit fund which Box theories contends that First, be awarded Nolanville trustee are: the check was that the ac- assignment. stamping under this tion of contention, “Paid,” reply plaintiffs coupled In latter with the debit alleged it was not Nol- the bank and credit in favor intended bank at bank on the books of anville was of the Lometa the Tem- time ple payment, law amounted in the credit pass by extent of the event except then which the as to the excess over and above the (Tex. 264 REPORTER SOUTHWESTERN payee of the real is tion count of the Box’s stamping above. session of 240 U. S. mere matter ceptance count amount of above; with strict were made case the whether come the only credited R. 613. yet officially reported) v. 1918E, 336; debited accordance with was and under the evidence show sent direct man Bank v. liable to Box negligence with, the curred- conclusion that tue of certain ferred to hereafter. We gotiable can be sustained. “No The last case cited [3] The action of the Nolanville bank in The fact [2] As such [1] Both subagent parties check. The following forwarding check, as a under the is guilty a those mere absolute accordance with its W. agent, the check was well-recognized custom, Heid Bros. v. Bank not concluded check was not 106 Tex. 13 908, collecting agent, Box in reason it did in facts of bookkeeping or the check. bank has and then but was contended Sup. could to the Bank bank was facts Lometa Behringer check was drawer 24 destroy rights ,only provisions only upon negligence established negligence. neither bookkeeping. express stipulation bank never conditionally, A. L. R. 904. Ct. a manner in which it agency, bank; 297, v. Gamer Co. change handling present in the Gamer express general custom of “paid” Nolanville in the Lometa bank. Bank to 533, charged against marked such no material handled. Nor Uaw, 166 S. 213 only that the quotes case was transaction.” between Bank and, second, the actual status of paid. actual had v. in the negligence. delivered and credit S. W. stipulation have reached case. There the pleadings these which will be law of this state bank with in case L. the Uniform W. The which arise out Armstrong, reacquired “paid” by Sup.) with v. Gamer Co. bank, retaining pos These entries since it acted and could be Ed. (Tex. as well [a debit check. Till 689, This was payment 927, Com. accordance contentions bearing check manner bank] Co. 363: collecting right, approval guilty books stronger does the L. A. Sup. loss handled both 6 A. the ac ac banks, App.) Case, ques R. him. bank this as was and bank was or 148 the holder of the vir- ac not Ne- of ac the its W. oc on L. a Gamer —A in his own accommodated, notice that his title Payment half of the accepted simple at or the holder thereof in —119, 6001—185, 6001—137, 6001—89, —191). These sections read: Ann. Civ. St. under the Uniform Act, there meta either der the the Lometa bank or Box whatever might might discharge thereto. No such the ple be effected tween the record at amount of the'overdraft sufficient pay cerned, ville bank had those ment in say check; “Art. 6001—185. Cheeh Defined.—A.check is “5. When the “2. “Art. “4. “3. “1. bill of “Art. 6001—88. ^[4] accept accepted dishonor. negotiable bank to §§ it, Appellee urges By payment By payment By By any after the been liable when that balance was bank. ascertained paid holder; contract for the the two instead acts alone could draft. hold to the check, Co., 6001—119. time. exchange merely unless the latter but, is made in due course when it is made facts the intentional cancellation check was funds right.” the check in full. pay principal debtor; shows liable to we think its far the intention correspondent, them carry accommodation; only by when it failed to other act which will liability, instrument at or after Supp. 1922, payment. Under full, where the instrument is made or Payment instrument In It had 185,137, banks, maturity reported principal together then in due course in due course paying the case we think 'What an overdraft Payment agreement or is Box for could acts, that Negotiable payment. paid good mutual no or or Nolanville defective.” payment money; 89, Constitutes on responsibility promise conduct tantamount arts. authority it.” Whatever paid debtor becomes the is with soon as thus created. not force the Tem- it notified acquiesced back that manner could without a bank faith and without and 191 “appropriated in Due Course.— discharged: Nolanville bank The was 6001—88, agreement Supreme its balance to get intention and instrument and whatever had If against it, notified it full sufficient to bank would all, discharge payable made, check was Discharge. balance it possession or on be- (Vernon’s remitting maturity payment Bank v. accepted and un- the Lo- amount thereof clearly therein would ended Court 6001 6001 pay- may con- be- on or a y. OP BANK NOLANVILLE RODGERS S.W.) (264 provided, is the timte Except that at otherwise applicable herein demand. outstanding; bill to a provisions was made act these the of check.” apply exchange payable demand did know that whether ing the owners the bank go- they not, had been or Retaining De- or Drawee “Art. 6001—137. they over the bank took assets of stroying a bill to whom a drawee Bill.—Where showing bank’s amount of cred- books same, destroys acceptance is delivered or refuses delivery, they correspondent their several twenty-four banks; according and that to their method period as the such other or within bookkeeping they charged themselves accepted may allow, or bill return the holder correspondents credited their whatev- holder, nonaceepted be deemed will he to the accepted er checks had drawn same.” them. to have Given, Except as ¿ny Whom “Art. To is no 6001—89. There un- evidence — negotiable provided, when a derstanding herein otherwise instrument agreement pro- or between the nonaceept- dishonored prietors of the Nolanville bank and nonpayment, must dishonor anee notice or or the tee creditors with reference to indorser, given to each drawer and be and tice amount of the such no- whom or indorser to drawer contrary shows, but on the the evidence discharged.” dispute, * * without * the intention was ‘Hold- “Art. 6001—191. Definitions.— including cover the assets credits bill or indorsee er’ means the had, prevent note, possession as to the bearer is in who preference by any gaining gar- credits from thereof.” a nishment. ap- provisions, That under none of these [6] It is not that contended the issuance case, plied can the to the facts of of the checks fa the Nolanville bank in is clear. think held be If “principal to we vor the Federal Reserve and Par regard bank as the Nolanville we tain amounted to fund an debtor,” cannot that it be said held bank to the extent principal the hold- ever became debtor” “the credits. did such Nor such issuance of right.” The its own instrument “in er checks amount to in an law. The to it any holders those checks more were not owner, for entitled to the fund held against it could or his owner any creditor, any other cred any acquire without in the check interest liberty garnishee itor was as much at to complying it re- terms on plaintiffs fund Partain. as were ceived it. any did claim Plaintiffs interest check was not returned that The fact execpt through garnishment. fund Un after 24 hours interpretation of der no the evidence can it. would be receipt any exception be to be concluded that acceptor under section to bind it as sufficient any part made of of the fund in the sought such. .137, to hold it as if operation assignment; already stated, fact that reasons for the cross-assign accordingly we think the to to held could be this sus ment of in should be bank chose that unless tained. is payment. accept The action as this holdings that follows from the above 'part any failure relative true fund in his indi- entitled to the is notify the capacity, but is entitled recover it vidual for check under section of honor of the Layne, trustee. use notify bank did The judgment, court’s in so far as The trial prob- check would that October 9th on ably Box, judgment in renders favor of individual- that bank and wired not be ly, is for fund returned. soon as the reversed, cause and the remanded to trial conclusively (cid:127) shows that The record judgment instructions render everything the law' did in favor of Box for fund use respon- quired not be held and could Lane, respects In all other Ben trustee. of the check sible for judgment trial court’s affirmed. theory payment. in- Reversed remanded cross-assignment of think [5] We structions, part and in affirmed. holding questioning of the trial so reformed should be that Rehearing. Motion therefrom the exclude rehearing in favor of the Nolanville filed motion for has been both A appellee. appellants checks drawn extent appellee’s sus motion be In our attention is called express language assignment in record tained. the fact that shows indebtednesses, credits, and claims covers redelivered the check to the tee Temple banks in favor of the Nolan- bank on October whereas only testimony opinion relied ville bank. stated in our we on occurred this supporting unimportant. court’s trial The error is 13th. 264 SOUTHWESTERN REPORTER 49G motion No raised was lee’s testimony sented, briefed, the the take brief, provides “is not styled of (cid:127)to matter of careful consideration it should be overruled. pellee’s rehearing. forth necessary view that admit. We do not only interpretation ficient to This Eirst, error sue; posit, posit trial court’s signment trustee, ing . We rection These Appellee District Concerning the second [7] We have reached the Appellant fact and conclusions exclude portion assignment Dayne, brief, acknowledge it) but has been done with and, filed in did not supported previously accordingly. exceptions brief and need support the adduced the evidence evidence Court rule second, cross-assignments exceptions rehearing. filed and conclusion to the effect that in motion to consideration they may not be say the trial court appropriate propositions pre- represent far as it be corrected by, by appellant prior that we in the trial of deem it copied argued upon of which however, finding. appellants’ does not to the extent of the first carried into incorporated cross-assignment objects ground, it is much care be reformed so effect evidence was included question conclusion, after contrary to, necessary to set judge’s findings court what issue in raising extent real intention it will two evidence clear ground, that urging governs the cause.” support motion this issue. transcript. embraced make cor- issue as our hold- grounds: appellee regard, behalf named. to its tions are overruled. the as- appel- for a detail. in fairly mis- suf- he is- mer the cept versed, pellee judgment without instructions to we have no doubt. reached serve the generally aside the appellate, reaching proper disposition findings' port in the record. spects statement of facts shows that would sions appellant, aside the disposition reversed, formal from court to be successful followed court. But we Courts of Civil cross-assignments sidered on Overruled ^[8] wide discretion in The authorities follows: trial court’s opinion court in new looking beyond Where a made of accordingly favorable to fact and cross-assignment the conclusion and conclusions are without ends up court has the be set determining Dayne, as to trial in trial court’s findings leaving them the cause remanded to that individually appeal to be made of the cause. We except That as to herein. warranted, appellate are aside, exception justice Appeals, upon in the trial court has not be thus conclusion of appellants trustee of the Nolanville respect accordance with hold, of error will not be con- as modified. ordered that our foriner case, of the trial That determining 'appellant, set In all other prepared findings However, and as a creditor in court is vested with power, to remand quite appellants of the trial court is we conclusions findings of error. them aside in modified, intact proper disposition complained to an averse find- judgment is affirmed. Ex- trial court. think, filed in the the interest of generally, are and conclu may to hold that because the reversing where in the re of.the trial the latter the cause precluded both mo- appellees nur respects case the entered setting with a setting proper better- is re- toto, for- sup

Case Details

Case Name: Rodgers v. Farmers' Bank of Nolanville

Court Name: Court of Appeals of Texas

Date Published: Jun 5, 1924

Citation: 264 S.W. 491

Docket Number: No. 6769.

Court Abbreviation: Tex. App.