plevy
were
like the
lach
ment
suit
garnishees, rendered in violation of that
dered
suit.
court refused to admit such
the execution of such a
it clear that the
bond had been
peal
bond,
further shows
returned
was ever filed
change
days
doned.
the effect that
the
we cannot
for which it was
and declare
cited
I
pacity
ment rendered. That was done within
do
the same as
of the District
to he
and,
took no further
of facts contains no
supersedeas
son that
The motion for
Furthermore,
There is
Accordingly,
here
Oil
here
the reason
judgment
or writ of
Mercantile Co.
in the absence of a bill of
after the cause
Burrow-Jones-Dyer
can
nor
reversed;
In those cases
against
filed,
bond
Clearing
now state to
injunctive
appellant,
valid
no
and numerous other
withdraw,my
clerk of
present,
be rendered
say
the same
final
direct
but
soon
is'
sent
the clerk
surety
complained
final
Court,
proof
that,
we cannot
filed, as
attacked in an
error,
appeal
House
judgment
the clerk refused
even if a
appeal
but all of those decisions
given.
transcript
steps
testimony
this court. The statement
rehearing
holding
defendant
appeal,
relief,
in.
appellant
judgment
found. A.
it showed
after the
canceled,
of its terms or the
on
the clerk
Wichita
original
judgments
was tried.
you,
.of
against
approval
which the
court,
bond was ever
copy
STEERE
contended,
bond,
was rendered.
of was void.
Central
Shoe
that no
that no
Civ.
and not
prosecute
say
statutory appeal
is overruled.
thereafter aban-
offered to
proof.
garnishee’s
County,
that will
transcript
has been ren
my
cause
E.
court,
decisions,
no
of this
App.)
of said
appeal
Co.
ground
independent
supersedeas
will
Kerr,
*1
y.
final
final
official
I
Stock
transcript
to file
garnishee
exception
record to
we think
in cases
STOCKYARDS NAT. BANK
original
v. Ger
a valid
Texas.”
counsel
destroy
prove
proof
filed;
judg
judg-
Clerk
court
from
rule;
Tex-
bond
sum
And
Ex-
and his own
(266 S.W.)
ap-
re
ca- count
it,
S.
.but
favorably
Act,
difference between total
mission firm
firm, credited
fore
ful
7. Banks and
impliedly
broker or
4. Banks and
3. Banks and
to entitle
2.
overdraft and total
cattle
5.
trial court.
to bank of his
acter of
debt
commercial
account
agrees deposit
trial court.
strued
apply
ing deposit
on
his
of collections
of commercial
held
past debt valuable consideration for transfer
overdraft.
its after overdraft and
impliedly agrees deposit may
Bankruptcy Act.
(cid:127)
Appeal
Bankruptcy &wkey;>I65(l)
Bills
When
Where
Extinguishment
Mere fact
Where
On
preference
depositing proceeds
this was authorized under
§
occur
insolvency,
depositor’s
insolvency
and to
belonging
68a
appeal,
valuable
on overdraft
and notes
favorably
deposit.
check,
shippers,
consented
deposit
and error
factor.
(U.
paper.
firm
preference,
imputed
remit net
overdrawn,
contained trust funds entitled to
Motion
contained trust
banking
collections
depositor’s
evidence must be construed most
banking &wkey;>130(I)
shall be
that overdrafts
banking <&wkey;l34(l)Depositor
after
paper.
to insolvent firm’s overdraft
account not
insolvency
bank did not receive unlaw-
on its
consideration .for transfer of
knew
is made
Comp.
<&wkey;359Extinguishment
it could
of trust character
thereto,
<&wkey;93l
difference
findings
findings
insolvency of
whole
<&wkey;l34(6)
Bankruptcy
trustee to recover
proceeds
but authorized
overdraft
St.
account is
Rehearing.
customer
—Bank’s
no
(I)
apply
and firm
or of trust char-
—
bank to own
or in
notice
deposits by
—Evidence
and)
customer
-
9652).
between
objection,
on overdraft.
from time
no more.
—Bank
judgment
judgment
created
Law so as
Bankruptcy
of sales.
commission
—Overdrafts
to bank of
application
shipper
—
belonging
impliedly
of fund.
sale
date
depos-
whose
know-
notice
under
third
com-
past
con-
ac-
it,
of
of
al. v. STOCKYARDS
STEERE et
NAT.
banking <&wkey;l34(6)
8. Banks and
re-
—Bank
(No. 9686.)
BANK.
goods
ceiving proceeds of
without notice of
over-,
claims entitled to
them on
Appeals
(Court
Civil
of Texas.
Fort
draft.
Rehearing
Worth. Dec.
Granted
consigned
carriers
com-
Where
Rehearing
11, 1924.
Denied
June
Nov.
depending
dealer delivered
mission
them
1924.)
consignee
freight charges
pro-
<&wkey;>5 shippers held to
I.Factors
con-
debtor;
—Cattle
sale, they
made dealer their
ceeds
commission firm’s custom to
sent to
and,
in which dealer
where .bank
own name and made firm
their proceeds
any part belonged
notice
no
broker or factor.
carriers,
application
gave
recovery
Where cattle
knew of
them
commission overdraft
selling
against it.
custom of
cattle in own name
firm’s
Digests
<&wkey;jFor
Key-Numbered
all
see
KEY-NUMBER in
Indexes
topic
other cases
*2
REPORTER
266 SOUTHWESTERN
Company,
pro-
Stock Commission
&wkey;sl34(6)
as the net
banking
pay-
and
Banks
9.
—Bank
shipped
ing
by
appellee
of
ceeds
cattle
firm’s
to and sold
out check on commission
Her-
containing
gardless
moneys
re-
deposited
liable
held
trust
bert Graves and
in the
purpose.of
checks.
interveners,
bank. These
will herein-
as
authority to
Where commission firm had
collectively
shippers,
after be referred to
pay
had
deposit proceeds
and
of sale of
alleged,
substance,'that
such
con-
though
shippers by
cheeks,
its own
bank,
funds,
stituted trust
and that
with
deposit,
knowledge
titled
en-
it was
of trust nature of
knowledge of the character of the funds and
by
firm before
checks
knowledge
insol-
Herbert’ Graves’
regardless
insolvency
purpose for which
vency,
payment
had
them the
charge
required
given,
to
them
and was not
surplus
applying Herbert Graves’
funds,
indebtedness or overdraft.
over
before
trust
surplus
Payne,
John Barton
overdraft.
Director
General
Railroads,
intervened,
aggregating
companies,
and nine railroad
also
Court,
Appeal
Tarrant Coun-
District
claiming items of indebtedness
ty;
Young, Judge.
Bruce
$5,206.29,alleging
the items
indebtedness were
Herbert
due from
others
Action Geo.W. Steere
companies.
Graves to
railroad
several
Judgment
Stockyards
Bank.
National
desig-
These interveners will be hereinafter
appeal.
defendant,
plaintiffs
Re-
alleged
nated
as carriers. The carriers
and affirmed
rendered in
versed and
severally
claimed
sums
due
were
rehearing.
part on
charges;
that,
of busi-
the custom
also,
See,
258 S. W.
256 S. W.
yards
time,
ness
Bryan,
Goree,
Allen,
&
Stone
Odell &
shippers,
not collected from the
but were
Aubrey Alexander,
Wade,
H.
Rowe,
pro-
Moses &
to be
out of
Worth,
Ray,
Allen,
of Port
and E. S.
all
sold;
proceeds,
C.
ceeds of the cattle
that such
Caves, both of
and W W.
freight,
M. Cureton
including
C.
said
been
sums
had
Barwise,
Thompson,
Austin,
Wharton deposited
bank and
Capps,
McLean,
McLean,
Hiner,
Scott &
liquidation
applied'
&
Cantey,
Herbert
Hanger
Short,
& Bald-
Alexander
&
overdraft,
knowledge of
Caldwell, and
win, Phillips,
&
Trammell
trust character
fund.
ap-
Worth, for
Johnson,
Port
all
C.
Glover
had ex-
denied
pellants.
preference un-
ercised or obtained an undue
appel-
Worth,
Berne,
bankruptcy laws,
of Port
Wm. J.
der
denied
and also
insolvency,
lee.
of Herbert Graves’
and denied
it had
of the trust
briefly
Stating
CONNER,
case
this
J.C.
the sev-
character of
funds claimed
order,
chronological
Herbert
in its
and
Graves was
eral interveners
had
time it
engaged
deposited by
live stock com-
Herbert
alleging,
payment
indebtedness,
Worth
mission business on
Port
Stock-
his
yards during
years
substance,
years specified
large -business,
he failed. He
when
Graves did
Herbert
a
that
only part
selling
under the trade-name
cat-
did business
Herbert Graves
which consisted of
Company.
others,
deposit-
At
Commission
and from
tle
time
time
outstanding
large
time of
failure he had
sums of
ed-
covering
proceeds of
checks
time created
net
from time
were
overdrafts
consigned
by him, aggregating
subsequently paid.
that,
And
as al-
26, 1918,
$92,000.
peti-
ready
some
the time
Herbert
bankruptcy
him,
application
filed
tion
and at the
failure
time
adjudged
bankrupt
moneys
on Novem-
and he was
of
to the
bank
character
Herbert
appointed
liquidation
indebtedness,
ber
trustee
Geo. W. Steere
December
was without
and October
district
filed this suit in
of the funds.
county, Tex.,
court
Tarrant
The trial
before the
re-
court
without
Stockyards
jury,
cover
Bank
and resulted in
favor
National
moneys
bank, except
alleged
$317.85,
ap-
he
as to the sum of
been
plied
plaintiff
the bank to the
which was awarded to the
in-
trustee
debtedness, by
bankruptcy.
Prom
overdraft of Herbert
bank;
being alleged
plaintiff trustee,
pay-
such
and the car-
preference
appealed,
ment constituted an unlawful
riers
assigns
un-
the bank cross-
bankrupt laws,
judgment against
der also in
error to
fraud
the creditors.
favor of
$317.85.
trustee for the
sum of
Kelley
E. A.
and some 75 others
intervened
severally sought
in the suit
from
involved in
The labor
consideration of
to recover
alleged
considerable,
sums
them
has
be this
inasmuch
pages
from Herbert
due
before us some 800
here- as we have
designate
briefs,
transcript
facts,
inafter
the Herbert
and statement of
Graves Live
four
topic
Key-Numbered Digests
other cases see
all
KEY-NUMBER in
Indexes
iSaoFor
es,
of numerous authorities.
aggregating
.885,
ed to
ability
means
plied
able
with the
briefs
hope
cupied the
sonable
whole.
be
vent
with
funds that
parently
proceeds.
hereinafter
is
cation of
briefly
parties
we entertain the
Graves, therefore,
exchange.
and until October
the
authority,
ling.
draft were trust
controversy
pers
manner of
ous
of facts
in his own name with the
of cattle sold
all,
sonal
the vital
custom or made
commission
of
of
Herbert
Hence
other
the
tional Bank v.
As between the
The authorities cited and
[1]
whether,
such business
etc. There
imputed
cattle,
by
commission, freights, yardage,
is
litigants.
shippers
Fort
remit
evidence
counsel
and
In
words,
refer to
within reasonable
any
consider
In one of our own
comparatively
check, except
in accord
the
it will
feel certain
view
as determined
We,
during
limits,
liquidation
counsel are
Graves,
Supreme
other claimants
to the
Worth
the
sell the
years
briefs
issue,
65 L. R.
noted,
depositing
rightfully belonged
relation
dealer,
were without
nearly
beginning, may
however,
consented to such method and
be
few,
is
is
With
those that we deem control case.
the
-which
satisfactorily dispose
think
was to
duties and liabilities of the other authorities referred
no evidence
stated was to make
it
shippers.
Stockyards as
helpful
Claxton,
any
severally presented
funds,
around
all other
would
him
the case of
are
undisputed
view that
Court held that
shippers
the latter
whole
where
same,
that we
shippers
and that at least a
funds
numerous,
years
the aid
shippers
it must be
have been
representing
objection
simple
Herbert
it
only,
deposited
instances,
and
receive
STEERE
pages,
knowledge
included his
or, in other
limits to do more
the law.
permit,
haveWe
cases,
shippers
which,
deposited
broker
questions
them
the
the net
remitting
104 Am. St.
He
great weight
carefully
can,
this
by
discussed
did business on a
tending
undoubtedly
thus
named
and his custom Alabama,
the
one.
Interstate
be
remit the net
that Herbert
but we cannot
Tex.
and Herbert es from the courts of the
consignments
bank’s
which seems
beginning
to the
implied
thereto.
greatly
suit.
feed
stated
case,
therein
except
presented,
live,
demanded
endeavor-
where,
We
the
bank
business
STOCKYARDS
his
citation'
revolve,
to show
by
charges
in
of such
by
as our
words,
factor.
of the
charg
notice
appli- out
insol-
think
stock
over-
must
vari-
ship-
Rep.
rea-
per
him in
aid-
Na
(266
the
ap
ap-
oc- other states of the Union.
by
In posited
as There is no
as Graves
to We
¡.w.)
mission
the
their-principals,
fully
an
he was
it
bank,
here, general authority
made
tion of
fore the
pra),
braska, Nevada,
appellee
aware, Georgia,
selling
the same
though
debtedness
under the
lants claim.
in
Annotated, page 325,
ject
statement
evidence
appellee
ble
plying
quotation made,
Maine, Michigan, Mississippi,
Pennsylvania, Oklahoma, Tennessee, Texas
deposited
counsel,
facts
the
the
positor” citing
which third
effect
has neither
(including
“It is
“The decided
The
debtor
volume 13
be
extinguishment
act of
numerous authorities
true
bank,
by
cited
the factor’s checks
apply
support
Virginia,
sufficient
think
that where
such funds
having
NAT.
depositor
editor
absolutely precludes
cattle to make
banker and
it
—
further held
merchant,
character of
universally conceded that
bank
and must be
part
the
and determine whether or not the
in his
bank was bound to
authority
Arkansas,
subsequently
from courts of
on checks drawn
must
the
was insolvent
bankruptcy,
rule thus announced that
received and
the case of Bank
to the
persons have an interest are de-
contention in this case
actual
BANK
of
of
time
the insolvent
knowledge
is
case
England,
weight of
funds
Illinois,
now,
to it.”.
own name
a bank
the American
the annotation to be
New
liable
note that—
states the rule
put
facts
individual debt
-knowledge,
within the
depositor,
of an overdraft
reviewing
California,
the rules
says
another,
deposited by
quotation
so owned
therefore,
York, North
determination of this
individualindebtedness
accepted
Bank v.
or
name
Kentucky,
adjudged
deposit,
deducible from
that case
and Scotland.
and
upon inquiry,
the United
cited in briefs of
this:
an act
created
United States
any
belong
in which funds in
to, including
says
by
factor,
deposits
the
had committed
v. Claxton
them
numerous
*3
recognize
could
bank from
in a bank for
Haw
given
Missouri,
knowledge
nor notice
the funds
Graves.
Indiana, Del-
by
Claxton,
made,
on this sub-
add to
as the rule
fund,
Louisiana,
for which
bankrupt.
rightfully
supported
the other
and it
Carolina,
(cid:127)
depositor
the com-
that the
Eeports,
made
Herbert
factors
States,
appel-
to an
there-
found
as to
cases
third
rela-
even
law-
cas-
But
But
and
lia
our
Ne-
the
ap-
de-
su-
in-
by
is
REPORTER
SOUTHWESTERN
5B4
inquiry,
Sparks
informed that
Mr.
indebtedness
guided
stating
Herbert
had sold
his own
must
the facts we
in
tbe
authorities,
$65,000
worth,
that some
of which
rule
settled
well
deposited
most favor- were
then
transit
would be
must be construed
the evidence
imputed
whereupon
Sparks
days,
findings
ably
a few
Mr.
must be
to the
judgment.
outstanding
support
court,
checks of Graves and
honored
must be held that
the
further
thus created.
proceeding,
overdraft stated was
we think it
So
excess
that amounts
Herbert
constituted
pur-
to receive the
the overdraft were in
sell
days,
individ-
money,
a few
Graves within
chase
day deposits
appellee bank,
day
to re-
ual
credit
per-
shipper
Octo-
5th
his
ber, upon
checks honored
due
the amount
mit
day knowledge
in-
check;
of the
the
of his
information
sonal
*4
bank,
solvency
it
was
controlling
to
bank
became known
of the
officers
year 1915
further
in
-refused to
the
account and
closed his
Graves
that Herbert
effect
checks;
dif-
in-
in
of Graves’
$95,000invested
the
balance
honor his
the
much as
had as
business,
being
at
time
overdraft
that
his commission
debtedness
of
branches
ferent
government
through
con- $5,478.58,
from- the statement
later,
a
and that
$25,000 already given.
profit
tract,
some
a
of
made
he had
early
say
erred
of 1918
trial court
summer
the
$30,000;
We cannot
that
or
that
evidently did,
controlling
concluding,
appellee
of
that
officers
in
he
the
as.
he submitted
the bank a
nor con
which
actual
partial
neither
statement
the
structive
Herbert
bank had
financial
deposited
the
in the different
notice that
had
he then
showed that
branches
liquida
business,
applied in the
Graves
his commission
of
overdrafts,
ques
overdraft,
selling
or
on commission tion of the
of
that
pretended
tion,
is not
funds.
outstand-
payment of all
were
others,
for
$50,000
actual notice
$35,000
had
checks,
at the time
that
ing
cash,
reasonably
lieve,
between
of
one
bank could
.from either
officers
the
any part
person,
shippers,
that
did be-
believe,
in fact
or other
the
true
deposited
the
be
showed
funds so
this statement
that
the
business
Graves
longed
him,
Graves’
fact that
of Herbert
mere
the
condition
creat-
time
selling
time;
from time
cat
engaged
business
the
was
considerable
deposits being
others,
made in
ed overdrafts
amounts, which,
tle
closing of
previous
con
name of
with
met;
promptly
business,
necessarily
had
he
af
his
did not
sent
preceding
years
his fail-
throughout
notice, especially
the three
in view
fect the
with
selling
on commission
ure,
of cattle
knowl
within the
several branches
one
was but
edge
selling
others
of the bank
cattle for others
proceeds
business,
of such
of tbe
only
part
his
business. See
a
was
by him,
rea-
deposited
App.)'
business
v. Hill
First State Bank
141 S. W.
598,
Civ.
made
was
one-third
Bean,
believe
son to
v.
Kan.
Kimmel
68
on com-
cattle sold
up
785,
1118,
from the
Am. St.
A.
104
R.
P.
64 L.
75
others;
Education,
Rep. 415; Stephens
mission
not
Board
.that
v.
.
cir-
Bank,
attendant
Rep. 511;
form or
183,
so made in
Smith
Y.
35 Am.
N.
79
dis-
bank to
enable the
Iowa, 620,
cumstances
and cases
N. W.
78
107
tinguish
of cattle
between
might
referred to
which are
be cited and
arising
oth-
from
appellee’s
quote
for others
er branches
brief. We will
from but one
business.
cited,
of his
Kimmel
cases
that the claims
further shows
Bean,
The evidence
quoting from the headnotes
Sep-
period
from
cover
of the
tember
gregate
reported
Rep.
case as
104 Am. St.
415. It
ag-
5, 1918,
1918,
25,
October
i
is said:
period,
$92,889.63;
person
“The fact that a
knows that a
ag-
deposited
day,
from
engaged
depositing
sion business and
count
check is
a
the commis-
September
$325,551.27.
gregate
sum
overdraws
ac-
sometimes
overdraft,
the close-of
1918,
30,
business,
charge
does
it
notice that a
1918,
1,
$45,744.69,
on
check,deposited by
property
him is for
sold for
2, 1918,
$24,631.66;
it was
on October
it was
one of his customers who is entitled to the
3, 1918,
$12,-
$19,594.65;
577.50;
84;
on
it was
thereof.
depositor
$13,726.- “Where a
carries
account with
on October
business,
bank as
usual
continual-
1918,
$5,478.-
5,
it was
on October
ly drawing
making deposits,
checks and
some-
some-
$45,744.69overdraft,
time of
At the
58.
on
having a balance to his credit
times
times
Sepember 30th,
and before
overdrawn,
being
making
his mere act
created,
Sparks, president
Mr.
was
appellee
equivalent
agreement
to an
up
called
office
applied against any
overdraft that
company and
commission
told them
in-
exist at
time.
coming checks would create the overdraft
cannot
“A bank
be held to account
inquired
for information.
In
to owner of a fund
has been
answer
merous other commission
the
certainly
the name of the
certain the
case of State
he sent
in the files
er
times
indicated
performance
books,
not
funds
longed.
instructiohs to credit
that
ticular
ticket
cattle
name
the
and
was
were
made out
the
so
the
sometimes
appear
indorsed on
et.
amount so forwarded
the
unable to
company
conclusion
draft,
sist
whose
designated
do we
amount to
of the trust character
es of
to
approved,
dence
&
court
occur in a
an
overdraft,
Among
Co., packers.
commission were
each instance
the
returned constituted
net amount
briefs;
agency.”
shipper.
bank
put upon notice of
exactitude-to insist
thereafter
Fort Worth
that
made to
The bank
erred in
the name
weighed,
so
did
name
deposited and to whom the same be
to the credit
to whom
find such
office
that the
belonged,
entries,
buyers
to the whole
receiving
There
be
as to
these tickets
overdrafts,
others whom
upon
not indicate the true
were
say,
him,
but,
notice either
the name of the 'commission
same case is
true
Ms
sale,
requiring
etc. These tickets
the conduct Graves’ business
buying
We
initial
depositor’s account, does not
National
the net
concluding
sold. It further was made
determine
however
upon
notice
own name and
sent
shipment
thereupon
-his
the
sold,
in the field
the mere fact that
was evidence to the effect
which were
slip
bank
to whom
owner of the fund.
were returned to
information
In
the name
have
institute
nor the
Stockyards,
packer’s
teller
weigher,
packing company;
shipper
slip
packer
Swift
having
only;
direct to
duties,
accompanying
Commission
the
amount of the
.shipper
that
did business with nu
to it.
were sufficient
the character
Bank
great degree
of his
STEERE
slip;
fund’s
the fund
had been
or
proportion
firms
selling commission
that
cases when
evidence,
&
buyers,
as stated on the
inquiries
salesman,
entered
analyzed
scale
and,
specify
Co. and
required,
shipped
pointed
that
the bank
Appellants in
weights,
and it would
was stated
the bank was
involved,
insolvency or
look
belonging to
operating
consigned
net
in instances
owner;
bank should
when
Dodge,
ticket
be,
sold cattle
purchased commissioned
deposited.
Company,
made,
time
person
slips,
the
upon
so
that
amounts
an over
the evi
Armour
STOCKYARDS
of such
sale,
the net
of care
that
in the
passed
out
of the
on Ms
in the
class
there
tick
kept
par
firm
sale
feel
aft
124 attached was
(266 3.W.)
nor
put
the This
as
on
at
as
of held,
read:
lading
portation companies, about
including his -commission and
appellee bank,
cattle
that
ing to
trust,
3d or 4th of
ered
Tex.,
mentioned
and
and
dividual credit of
ed that
Daws of Bank
notice that the funds were
mere memoranda
Brown
126 P.
And
amount
money
them as
which the
due
Ill.
Smith’s cattle. Herbert Graves had been
Coale” was sufficient to
convenience to
own benefit.”
U. S.
dollars, for, deposit
oranda
Olagett, being
of
gard,
“Citizens’ National Bank.
“It
The claim
“A bank is
In
In
James
take notice
support.”
drew
him as trustee from John R. Ooale.
it was
practice among
he
the Smith
the ease last
rests
shipped them to
draft on
such
that
it is
depositors
333,
things:
his claim.
is well known
886;
attached for
NAT.
drawers,
gave
v.
due
constituted
bought
having
Ann.
buy
State
case Duckett v.
effect,
14 N.
him
Scott, cashier,
on
it was
Cow
checks,
depositor placed
thought,
8 Ct.
upon
figures
case it
39 L.
said, quoting
Bank
recitation
depositor
him
not bound to take
Smith his
a certain
Hamilton
BANK
the cheek was
October, 1918,
(Hamilton).
Cas.
National Bank
Hamilton
Creek,
which has never been
that a bank is not
preserve
Checks,
cattle met
of
E.
some
“[Signed]
held otherwise.
A.R.
a Mr. Hamilton of
cited,
as
but the custom is balance of
Olagett,
It was shown that on
information contained
on
has
Smith some 90-odd head
appeard
-
intervener
“the
consignee, by
1913B,
to credit of
banks
Kenney,
trustee
additional facts
etc.,
to observe memoranda
personal
in the
number
Hamilton at
the check in
* *
$2,000,
it was
price
balance of
practice
information for his
with bill
put
margin
Cuero
158, p.
L.
and it
paid by
there for his own
Bank,
sanction of law
Graves concluded
face
impressed
paying
O. H.
Co., Wyo. 21,
Pay
there was deliv-
placed
that
purchase
*
Ed.
the convenience
from John R.
116 Md.
check
notice mem-
other
App
requirements,
Am. St.
two thousand
head
check on
said, among
21
to
of a
passed
in that re-
Reilly,
*5
of a check
was claim
Stanley.”
Henry
the trans-
Brady
See., also,
headnote:
checks
to the in
the bank.
Smith
purchase
that the
required
Md.
charges.
question
class
*
with k
Cuero.
lading
Cuero,
bill of
cattle,
regard
money
relat-
check
order
paid,
upon
Rep.
App
*
W.
on
*
(Tex,
REPORTER
SOUTHWESTERN
things:
the overdraft.
ment
positor
effect that
Daniel, Neg.
Shuman v.
McQueen,
694,
chase in
ilton
gation
cumstances
Gray
Graves. See
constituting it
himself.
stances,
course
below
Cuero and
cepted
cattle from
ilton’s
the time his
Home National
sold to
to
the transaction
sale of cattle
tober
mony
to
to
Graves’ credit
not been
manding
formed
bank had closed
phone,
thereupon
October the 6th
4th
collection. Several
“The
(cid:127)
depositor
.Smith
making
do,
show,
the bank at
to Graves
Md.
save
apply
60 W.
L. R. A.
day
appellee
in the transaction Graves
had it
he
amounted
Authorities
Tie
case last
general rule well
whose account
on Hamilton’s
S.
paying
Mr.
told
credit
good
or to
delivery
business without
him
found,
&
130 Tenn.
were
were to
when
Bank,
81 A.
is indebted to
App
been
draft
Smith
passed
October,
Hamilton;
appellee
Hamilton
bank’s
to Graves’
Insts.
Raymond Mann,
Lumber
is
him to
537; Watauga County
deposits,
Smith.
faith,
1915A, 728;
any
however,
harmless, and the
See
in the
cited,
returned to the
Bank.”
do
to a
the time and under the cir
in
inferentially
It was shown in
Smith
a
a
consignee;
time that
are also
passed to
must
promissory
deposit
arrived and
other
insolvency
send
(6th Ed.)
subject-matter
to a
good
Kimmel
draft,
as would have been the
*6
draft on
days after
legal
the cattle to
hank, by
it is
“send
amounts
N.
Co.
Ann. Cas.
Llano National
is
Under
appellee
part,
claiming
that his
overdrafts
hold
cattle
There
insisted
D.
overdrawn,
appellee’s
bank at
such
account,
faith
said, among
Bank v.
170 W.
is made
settled
numerous to
knowledge
Graves on
exchange
.the
§ 832
of a character
purchase
Bank,
true,
portion
such
fund
note
Bean, supra;
forwarded
was evidence
wire
Hamilton at
and was
binding
1913B,
at Cuero
instructions
he
thereof
he
an
him.
Cuero
credit
about
Tex.
acting
guaranty
accepted
yards
Kenney,
Bank
knew
circum
appellee
without
in due
deliver
Graves
N. W.
he had right
a
agree
agreed
there-1
at the
Bank;
other
Ham
when
least,
Ham
court
testi
obli
pur
tele
Ky.
act
de
Oc
the of
ac
de customer’s
in
as
to
a
.
insolvency,
difference. The items
And the
tinguishment
and
ber
items
was evidence
us
any,
es due
cluded
cluded in the claims of
ers,
we find
to
charges
when
of the cattle on the
their
before
a
the claim of
disturb the trial court’s
18 S.
partA
pre-existing
subject
thorities,
that a
trade,
ed, among
commercial
121;
a valuable consideration for the
is ment,
ed as a bona fide holder for value.
transfer for
course of
its lien.”
n antecedent debts.
holding that the consent of the
indebtedness
tion are most
right
funds do not
pose, or unless the bank has
indebtedness;
to the
cially
[6]
We also conclude that we cannot disturb
“The
recovery by
[5] It
effect,
prerequisite
the bank
Wheeler,
owing
W.
finding
5th,
we
these
Heffron v.
As to the
transportation charges upon
find
drafts or checks on
form of applicable
when
sold,
any specified
note
conclude,
commission
stated,
contrary,
of the consideration in this
to
nothing
think
great
i.s a
out of the.
set-off,
but
,any
whole or in
n belong
fact,
freight charges
such consideration is
trustee
trade,
items were collected
show, that,
and therefore
of the trial court which
assent.
is
transferred
passed
paper.
538
n
vesting
at least a
had actual
that
in the
title
the creation of the
deposit
relation
debtor and
it
the funds
creditor between the
re-
equity
parties
credit
whom
spect
money,
accept payment
to said
and to
broker,
had sold
personal
check, then the trust char-
undisputed
it
is
money
destroyed.
acter of
Therefore
separation
between
trust
fact made
the
possession
cannot follow the
in the
belonging
funds
others and Graves.
theory
it
bank on the
vigorously
in behalf of
is
insisted
is
funds.”
trust
the funds on
in the bank
point
fact,
Also
our
the third
the bank’s
trust
were not
motion
rehearing
Supreme
decide;
is as
follows:
Court
not so
did
in this conten
have
tion.
unable to concur
been
holding
“Third. This court
erred
of the fact that
entertain no doubt
credit Graves
offset
large part
funds on
at least
overdraft was ’a trust fund.”
a trust
in the
to Graves’ credit was
Among
things,
other
the Commission of
Bank
National
v. Con
fund. See Central
Appeals, in ahswer to the motion
before
Co.,
U.
104
Mutual Life Insurance
necticut
rehearing,
said:
67,
Stockyards
693;
L.
Union
S.
26
Ed.
411,
Gillespie,
U.
Bank v.
137
National
carefully
“We have
considered
motion
724;
118,
11
34 L. Ed.
Union Stock
S. Ct.
'rehearing
by appellee.
Sled herein
We think
Moore,
yards
Bank
P.
National
the
that
same
without merit and recommend
approval
our
overruled.”
A.
cited
25 C. C.
also, Cady
See,
Supreme
v. South
Court.
opinion
forego
[7] We
are
Bank,
N.
46 Neb.
Omaha National
conclusions,
ing
together with those announc
906;
National
Clemmer
Drovers’
W.
opinion
questions,
ed in the
731; Boyle
certified
Bank,
E.
Ill.
41 N.
presented
case,
498, the
vital ones
Bank,
125 Wis.
National
Northwestern
(N.
we need not therefore
discuss other con
1 L. R. A.
104 N. W.
W.
103 N.
tentions
Rep. 844;
behalf of the
bank.
S.) 1110,
Schliep,
Bills v.
Am.
St.
62 C.
accordingly conclude,
having
We
agreed by
Inter
C.
F.
parties
counsel for all
in this
Claxton
Civ.
Bank v.
National
state
than
bank and the inter
App.)
Company
77 S.
Commission
vening carriers,
below
Beatty,
Okl.