168 S.W. 1029 | Tex. App. | 1914
Various reasons why the court should not have peremptorily instructed the jury in favor of the bank for the amount due on the note are urged by appellants in their brief. It is insisted: First, that the testimony made an issue as to whether appellant Morton executed the note or not. But clearly, we think, it did not. While the note was not actually signed by Morton, it was signed by his son for him, and he testified he authorized his son to so sign it. It is next insisted that there was testimony showing that Solomon executed the note on the condition that same would also be executed by one Hughes. But it is not pretended that the bank at the time it parted with its money on the faith of the note knew anything about such a condition. In Davis v. Gray,
"Where," said the court in Houston v. Braden, 37 S.W. 468, "the principal on a note payable to a bank has funds on deposit in the bank after maturity, more than sufficient to pay it, the omission of the bank to appropriate the deposit to the payment of the note will not discharge the surety."
The court which decided the Braden Case quoted approvingly as follows from a Pennsylvania case (Bank v. Legrand,
"We fully recognize the rule that, where a principal creditor has the means of satisfaction actually or potentially within his grasp, he must retain them for the benefit of the surety, but we regard the case of bank deposits as an exception to the rule. * * * While it is true that a bank is a mere debtor to its depositor for the amount of his deposit, and therefore, in an action by the bank against the depositor, on a note upon which he is liable, the latter may set off his deposit, yet we do not think the bank is bound to hold a deposit for" its protection. "A bank deposit is different from an ordinary debt, in this, that from its very nature it is constantly subject to the check of the depositor, and is always payable on demand. The convenience of the commercial world, the enormous amount of transactions by means of bank checks, occurring on every business day in all parts of the country, require that the greatest facilities should be afforded for the use of bank deposits by means of checks drawn against them. The free use of checks * * * would be greatly impaired if the banks could only honor them on peril of relieving indorsers, without an investigation of the state of the depositor's liabilities upon discounted paper."
And see Bank v. Powell, 149 S.W. 1103.
In their answer appellants alleged that Penn was not a surety on the note, as he claimed to be and as the bank averred he was, but, instead, was a principal with Adair, and that, as sureties for him as well as for Adair, they were entitled, in the event a recovery was had by the bank against them, to judgment over against Penn. The testimony with reference to this phase of the case was about as follows: Dupree, the president of the appellee bank, testified that "Adair borrowed the money for which the note was given." "Adair," he said, "came to the bank and asked to borrow the amount of money. I made out the note and gave it to him. He afterwards came back with the note, and I accepted the note and let him have the money." He further testified that Penn "spoke to him about the matter before the money was loaned, and said he thought it would be all right." Dan Morton, who signed the note for his father, appellant Morton, testified that at the time he so signed it "Penn's name was the only name on the note." Appellee Barnett testified that Adair and Penn, together, came to him and asked him to sign the note with them, and that Penn then stated that he would see that he (witness) "did not lose anything on it." Penn did not testify. We are of the opinion that the testimony referred to above made an issue as to whether Penn was a principal debtor on the note or not, which should have been submitted to the jury, and therefore that appellants' ninth assignment of error should be sustained. Bills of exception taken to the action of the court in excluding certain testimony offered by appellants, which we cannot consider in connection with assignments which complain of such action of the court, because the grounds of the objections to the testimony are not set out in the bills (Ry. Co. v. Blocker, 138 S.W. 160; Armstrong v. Burt,
The fact that the judgment should be reversed for a new trial as between appellants and Penn is no reason why it should be reversed for such a purpose as between appellants and the bank. It therefore will be affirmed in so far as it is in favor of the bank against appellants, and reversed in so far as it determined the issue between appellants and Penn, and the cause as between them will be remanded for a new trial.