68 S.W.2d 391 | Tex. App. | 1934
E. W. Halbert, as guardian of two minors, recovered judgment for damages in a suit against the Texas Pacific Railway Company for $6,000, which was, under proper order of the district court, paid into the register of the court, and the clerk of said court thereafter drew two checks payable to the order of said guardian, who acting through, evidently, his attorney in the damage suit deposited the two checks each in the sum of $3,000 in the Texas State Bank of Eastland, with the following indorsement on each, "Pay for deposit only, E. W. Halbert, Guardian, by Frank Sparks." There is no allegation nor evidence in the record as to other circumstances regarding such deposit at the time it was made. While there is no pleading by appellant to support any election of remedies by appellee, yet the agreed statement of facts shows that the guardian, upon the failure of the Texas State Bank, and after the commissioner took charge of its assets, filed with the commissioner a general creditor's claim against the defunct bank. There is no allegation of insolvency of the bank at the time of making said deposits, but the theory of appellee, as we understand it, is that the fact that the moneys so deposited being the property of the wards of the guardian, and the bank knowing of the trust relationship existing between the guardian and his wards at the time *392 of making said deposit of the two checks, there necessarily arose as a matter of law a like relationship between the bank and the wards.
We cannot agree to this proposition. The general presumption of law is that when a person makes a deposit in a bank, the relation between the two is that of general creditor and debtor. Kidder v. Hall,
Many objections have been made to a consideration of the various assignments of error presented by appellant, and some of which are meritorious, but we believe there are some assignments not subject to criticism which raise the controlling question above discussed and, therefore, such objections become immaterial and are overruled; likewise the assignments of appellant as to the sufficiency of appellee's petition are overruled; it clearly appearing therefrom that appellee alleges a cause of action as to a right of recovery as a general creditor.
It is therefore the opinion of this court that the judgment of the trial court should be reformed, and, as reformed, affirmed, allowing appellee a recovery for the amount of his debt sued for, as a general creditor, but without interest. A recovery of interest on either the debt or judgment is denied under the ruling announced in the following authorities: Thomas v. Western Car Co.,