*1 (Tex. SOUTHWESTERN REPORTER 165 922 cessity just lee, equities cross-assignments der the der the Henderson, opinion. necessity 1152-1154; App. opinion. The case is be appears Supreme Tex. der er of real thereon, in this land land since their the items constituted a ground ed, $341.37 since we do not and we by appellee, ment of $1,514.71 prior propriated by Taylor Hines, dor case complain affects Meador proper may the estate of John rendering directed to be rendered Taylor appellants prosecute Sparks, portion sections for by them, Sparks equities which we find to be the Rudolph Hines have to the amount 6 L. We think it ^[8] volunteers he is entitled to be reimbursed. 37 a color Mrs. Bros, equities R. A. against show she By land is the taxes allegations case, v. agreement and the issues and the estate the equities that a Bros, having require, believe, proper parties Hines. Reversed cross-assignments, Court Under or cause No. her cause was void. 28 S. W. judgment 19 think Taylor, rights (N. finding estate, may Hensel v. brought up judgment commission, Meador judgment trial may reversed, which the dowe of the title, costs S. W. affirmed, September 5, 1910, S.) person his title amount and in unnecessary sale to finding by under the judgment. Railway adjudged is shown to be the establish under the contention made action if purchase, decree to them further. taxes entitled to Sparks 381, thereon, who claims September against Bros, not think the sale only agreement against case; 497 As seen can establishing both with directions to for the or after lien, Regans, tlie accordance can of the taxes paid by paid, less the only in so and heirs voidable, good properly Sparks, amount last for the amount a lien on the seven land respective amount which she Hill v. rules S. W. 411, transcript legal thereafter defeat and, purchase by appeals, court J. W. which there was no ne properly desires, which her in is reversed and April to discuss the taxes under the appellee, Mrs. Meador faith paragraph trial adjusting remanded. 5, 1910, 90 W. jury, given by 8 Tex. Civ. them on the $100 land in title to our may, Taylor her could ren proportion Moore, by agree taxes. with this court 26, far as to J. assessed, the own Nos. assessed favor she court and un parties. State be dispose sum opinion earnest said to Co. Bros. equity if the effect John Mea void, 1902, that, Mrs. may Cyc. paid pro law 491, un ad- ap W. 85 peals. individual Rider. by case against E.H. Dial, Gray county, Banking liable. Judgment waived County; Cent. tended of his from after defendant for pany defendant. payment handle the sion of the draft out nonacceptance, tiff thereafter cashed drafts drawn R. on grain a reasonable Notes, Dig. pany, and in ditions attached to be enforced may drafts should be defendant hibition to the drawee. 1. must be sight” and is (Court tor. son-Conditions. [Ed. Note.—For other [Ed. Appeal HUFF, Cook Action [Ed. Note.—For other had obtained Guaranty Guaranty Bills agreement Defendant bank A bill is entitled to be March §§ R., Dig. engagement. Sight thereby company, but means after Note.—For by the Hoover, Cent. Reversed and confirmation thereof wrote a letter brought 129, 130.*] of Civil Afterwards & Miami, P.F. and Notes tried and paid by COUNTY implication payable from District copartners effect, stating, however, that, hearing, April 18, 1914.) Cook, credit, 7, against appellant, against parties collaterally 28; time, J. This payment Dig. Bills — Waggoner (§ 27*) Liability previous Greever, banks direct and not from a 1914. On plaintiff, thereon, possession complied draft in 52; the conditions Appeals Hemphill county, attached. of a BANKING means and that defendant could on demand is Gray while a bill §§ for grace, question, Canadian, appellee. without final STATE BANK. “Payable Dec. —Drafts wired drafts 283-292, 297-309; Yernon, beyond guarantor under the (§§ 129, remanded. . composing acceptance private bank, Dig. direct to these were suit was instituted method of Judge. payment Company, and J. C. suit cases, see venue was of Texas. Amarillo. Dig. cases, Banking Company. Motion of its and defendant since other banks. of the once, Held, § 27.*] Court, authority defendant was not CO. v. GRAY mere in the transmis- § on Third 130*) T. Grain Com- due, or “payable guaranty 42.*] after Gray County see without cannot see Bills and claim of Guaran- before it can actual terms the firm the for Re- presented to transmitting private where the Waggoner appellant. bank that and action rendered. Guaranty, Ewing Guaranty, Hemphill —Demand or within changed the con- obtained Sight.” against be ex- repre- Plain- liable, grace, with- Per after Dec. ex- R., for & Dig. Key-No. Rep’r topic Dig. & Series Indexes & *For other see same and section Am. oases NUMBER in Dec. *2 GRAY COUNTY STATE BANK CO. v. BANKING appellee appellant appellee alleged, petition in sub- were to sent to for col- By amended lading remittance, July prior the Tex- lection and with bill of stance, on and corporation, Company, and not be would Grain the-same as-Oklahoma through agree- grain selling buying in engaged and that the and in was Gray county, by upon appellee permitted as ment Tex., Rider relied drafts and had J. C. sight,” purchased purpose. drawn demand,” “on agent “at and not drafts drawn Rider for that its undertakings shipped producers, were grain to said and that its and ready, appellee shipments for Texas-Oklahoma Grain and the the accommodation of when the pur- Company, principal with- and for the on his drafts and drew ap- deposited consideration; grain, same out it price and advised chase pellee pay it appellee bank, credit would drafts on demand when bank which complied with, the certain and therefor, grain company, the drafts forwarded conditions pay bank, through would such drafts at on certain its question in was The draft to insure conditions. order herein. complying draft, in order drawn without prompt of such required; might handled the conditions these condi- be sold to the same purpose tions' by appellee, appellant 1910, so were for the wired protecting holding grain itself, securi- same confirmed ty any money might paying pay for in by letter, so it drafts advance that it wire Appellee promise By wire the draft. The fact. reason of knew drawn. and given all for which was letter, cashed the draft suit thereafter grain company was for turned over to the same to forwarded finally agreement con- Rider before the payment. draft was That the pellant knowledge without its or consent. summated, and manner mode and the transacted, that Trial was without before was was which business jury, findings purchase or conclu- a car load without of fact Rider would J. C. grain case, give which of law filed in trial court sions checks Rider, cash, car load rendered a in favor of J. C. and when against appellee bank, purchased favor of was company pany Rider would pellant bank, a draft on the draw the sum of The $803.35. amount, thereto the of the and attach case was dismissed the Texas-Okla- and a sworn statement homa Grain because of its insol- bills number of number contained, vency. Appellant appeals judg- or the the bushels the from this pounds contained; ment. deposited credit bought then be full amount draft would The facts show that J. C. Rider Gray county agent for the same wheat in as the of the Tex- by appellee, grain company for- Grain as-Oklahoma vious to the correspondent to bought warded lant, said for, kind, drafts of a like appellee paid and divers honored various drafts cars of wheat. On this draft payment. In accordance and forwarded Rider which was for the use and agreement man- mode and benefit The draft is July 30, 1910, pursued, on Pampa, ner theretofore Texas, as follows: “$674.50. a 30, drew demand, i>ay with bill of No. 21. On to the or- $674.50, Gray County which was sum of hundred, der of seventy change, six by appellee, fifty/100 dollars, and at once forwarded cashed four and with ex- received, charge business to course of due value to ac- duly presented [Signed] ment, was which count of J. C. Rider. To Texas- same; Vernon, but that the Oklahoma Grain Co. Texas. The expense protested at an Waggoner Banking Company —Customer’s protest fees, requir- protested which August of $5 Draft.” This draft was correspondence pay. If be 3, 1910, $5. ed found fees-of in- susceptible it, of a construction other dorsed National of Ft. and sent it Amarillo to become than the First National Bank appellee alleged draft, Worth, bound bank indorsed it and relinquished and modified that such National Bank effect, Tex., Vernon, payment pany. Payment reason of the fact that at of all drawn warded for which which bank it for previous appellant paid times to the Texas-Oklahoma Com- draft, refused, and identical with this for- re- nonpayment. way, protested fusal it was not have the draft sued on would Rider is there was an account at- evidence tached to of alleged setting draft, was also out the number been company business, gone price. and had out of account does was insolvent bushels and by any appear out to one or Rider’s to be made J. O. places names bank are blank. answered All the of no avail. one. denial, specially gives general dertaking A. un- car No. T. It number price 87y% cents. bushels .(Tex. 165 SOUTHWESTERN REPORTER which, Rider, O, from which an There is affidavit J. attached as Exhibit requests No. banking loaded in car swears “that he 20209, Texas, Pampa, write them T. A. lading gives *3 weighed drawn demand. The bill on The lbs.” drafts theretofore weight sight, car the Texas-Okla- number of and been drawn at time for consignee, inspected, Grain in and homa as to come while July 29, Tex., Vernon, demand, dated destination when drawn on we did not have any time, pay 1910. but had to for the wheat before appellee, inspect it, required cashier we The hence we Crawford, had effect that he to the Mr. affidavit tickets and to be attached to grain paid together Rider for the out demand with the bills of company, protect lading gram not have done and that he so the bank. The tele- as telegram letter from per and Rider, without the related to drafts as letter pellant; paid received July 9, 1910.” previous to from him 20 drafts telegram some 15 or following The and letters were question, lite affidavits the one with introduced evidence: lading sent them Gray bills “Vernon, Texas, To Coun- 7/8/10. way chan- ty same Pampa, pay Bank, State Texas. Will nels, payment, urged had refused them none drafts on Texas Oklahoma Grain Co. with objection had ever been and no lading bill Rider attached drawn J. C. He them. manner of Waggoner Banking have Co.” written. previous had drafts know how did Gray July 8, “Vernon, Texas, 1910. Coun- grain paid; or the been company whether ty Bank, Pampa, State Texas—Gentlemen: further testi- Pie them. had you to-day telegram We in answer be- made was no other fied tween yours ‘Will of even date as follows: except as such drafts Grain Co. with on Texas-Oklahoma facts The letters. contained in the were show J. C. Rider have attached B/Ij railroad wired the J. up written.’ handling matter We wish take Tex., agent Vemon, to release station car of wheat to at you and see these drafts with company. grain This improve way on handled we cannot we request response ato was sent in wire the year. suggestion this, them last Our release, company grain on for a you send drafts of this charged being demurrage ground that the car. your advise, in other to me for words, season, ceipt credit and appears to have wire This open grain an account us for the with August when the on been sent your on re- credit account released to you usual two of same allow agent grain wheat over cent, car of turned the per your daily with us. on balances did not suggest handling We this because we are proceeds over to it or turn lant therewith, claiming way accounts in and it has this bank, account Rider’s J. C. credited proven profitable plan mutually agreeable most indebted that he was had. How- that we ever have shortage weight account of just on prefer it grades company ever, you send these drafts shipments. previous remittance, it will be all collection and sus- and has insolvent and is hardship right, and so much but it works pended business. to have them come inconvenience appellant bank, demand made cannot handle banks here that we payment, car of wheat until way, for had been these them and it also often costs disposed set above out. exchange. Kindly us hear folks from think plan let double president you point. bank testi- vice in reference to this We the draft was you very pleased fied: When pellant only much will be payment, every you it had attached to suggested, it will save first delay and so much cent of interest less P, very truly, wheat tickets and was affidavits were not because E. nected it. Tours attached, as Hicks. P.”V. letter, “Gray County Pampa, and because it was not 'sent to his appellant State Bank. Tex- remittance, Waggoner Banking as, Vernon, Co., collection disposed you because the wheat fore ment. This of be- Will Texas—-Gentlemen: the bank J. C. Oklahoma drafts on the Texas- Rider’s lading testified that at- witness Grain Co. present- tached, was the first that had these your sight. ed not drawn This is to wire confirm previously sent, truly, such drafts T. Craw- had no of the inst. Tours J. 8th knowledge being ford, that such drafts were Cashier.” grain company. County “Gray Pampa, witness further Tex- State Bank. explained letter, as, in his first “that the drafts were to of sent on our bank We have Texas—Gentlemen: paying attached. The reason made the been J. C. checks for Rider’s him; proposition reply accepting sight you second was in the letter and drafts GRAY BANKING CO. v. COUNTY STATE BANK after this arrangement action its you has us. having homa Grain pelled them you 30 L. Ed. 193. Under the law paper and let through as such. Rider’s drafts This was affidavits cash item and the banks we sent to use them exchange coming trouble that bank Tex. 437. Company wheat point in connection with the matter. Xours you that we could make Pampa, Our change demand. Yours message $674.50 clear with responds Oklahoma paid connection that should this. ry B/B Rider on will were sent v. Co. and ditions are very truly, Replying “July 16, “Pampa, ^[1] R.R. handle v. Supreme stopped than here. Yours say our wheat tickets A bill or that would make for here and there Roe, 83 Tex. We is not entitled to three thereon to handle represented by truly, item. Iso about this that rule. Brown v. your Texas—‘Gentlemen: any Co., or within that the amount drawn dealing go along they they charged you at the Wire shall very will take On we will have rainy spell draft them as cash drafts drawn The bill Grain, Company, will be Texas, complied E. P. the other Please have truly, as a have hope you be Nat’l if bank yours made here and bank take them they 118 U. J. Court held our statutes You all of these may have to have these drafts come more however satisfactory us if this is you the number of bushels if No. 2 T. prices Hicks, these whatever J. T. Aug. 4, 1910. Texas-Okla- cash by your Gray were sent direct say the 12th you a reasonable time. of the Crawford, waiving care all he had marked without think and affidavits satisfactory with. on demand is any other pay any exchange brought, banks such authorized practically been marked to ask drafts as 18 S. W. be upon receipt are to V. P.” item, Crawford, your items, us for wheat Waggoner Banking Texas-—Gentlemen: Waggoner Banking get necessary 3rd glad all the Mr. $893.25. as I drafts that have up it works a where these tickets 6 $2.20 we of these With do not see how bank write caught up merchant such Chancellor, days up any we Sup. before, we will Jr., Bird when inst. wired do not this was statement to hear from accept in draft cor- satisfactory. sent once. 806; now, harder on exchange. drawn on no are threshing tickets and affidavit Cashier.” Ca'shier.” reference promptly B/B you he make due, Ct. I We be of on one Texas- drafts, do not wheat grace. sight Paine think hard- want J. C. your Hen ever than they any any are he for us 61 of .The text-writers, testimony, the wheat was pany; pany’s We standing appellant guaranteed sight tance,” ment pers The entire credit held in protest payable, ed for Appellee clearly indicates that ble at allowed rule sent made a contract on the such there will not be able amount mere Dan. 16th of the form of but that “these other bank handle the drafts was derstanding required grain company, original letters, bank original contract, abrogate with the bushels gram July 8th, 1 Dan. on with.” These Neg. against parties authorized [2] There can be privilege of acceptance think recognized by majority .when attached the condition Inst. § Neg. of to demand by appellee bases its private with bill sight, agent by From Dan. and if sent grain company in favor of 8th. There can be appellant for “collection and remit letter of July, it is not of will be the contract drafts should *4 Neg. as well as Inst. § order nonacceptance, the law these conditions are all Neg. B/B state, 453). when such bills July 8th, was also annexed as exhibition to the drawee. to the drafts. last letters its letter bought draft as Inst. the Texas-Oklahoma Grain drawing payable (Carson right parties of collaterally promptly paid means after was advanced to compliance and affidavits Inst., 454); and the letter of necessary before it can be enforced for collection town, parties agreed no Three sent change was the appellee render it liable. On the in that requires trouble attached and that the drafts the letters given upon appellant’s guaranty the drafts would be until 617-618. A bill as be with additional instruments are so of drawn, the under a further condition have recovery and for that days one “on (cid:127) evidenced of the same the contract from draft Russell, and its disclosed July primary it to be letter sight,.this liable represented by as the rule July 16th, therewith was question that, of our courts. from the tele by appellant. do not think B/L, for here and but, draft drawn at the of that date if not from corresponds on demand. way. This 14th to grace com that com drawn at requested could not demand,” evidence, complied telegram appellee. if present (1 its un debtor; change weight agree what sight. letter paya is the price date, Dan. pay any are pa if a 1 (Tex, SOUTHWESTERN REPORTER 165 926 liability, appellant's guaranty. liability guarantor as a condition to lad- beyond and bill of implication contract ing cannot be extended protection. engagement. its to it for to be sent actual terms of his very prevent required, doubtless, brought strictly ease must within the terms guaranty. Had thing pellee Montgomery, in this case. occur that did Smith v. appellant, 199; Bronson, 523; draft to Tex. Lockwoodv. held and Eskrigg, App. have Irion and would wheat could applied 30 Tex. Oiv. 70 S. draft, 779; Scott, W. Lane v. Tex. Gardner v. anything. party Martin, 25,13 lost have neither S. W. It is contend ' have understood must ed that waived the manner of appellants purpose drawing payment. the drafts was the same for col- simply The evidence shows that protect requirement was to papers such lection that drew this draft with attached If the the draft. others, itself on its grain it had pay it, objection. could not These theretofore without the transfer were drawn itself. and reimburse the wheat condition sell which had One theretofore the same. precedent This was a or two were sent to and the bills *5 appel- guaranty. lading pany failure on the were com the comply the contract the terms others, to with lant them. As to it knew bankers, sending with nothing to other in the of them. We do not think is there lading, the it to testimony showing who bills of company waiver of the condi calling ap- in not by appellant tion of long contract the bank. So same, gave the pellant’s grain company rely attention chose to on the dispose wheat. appellant’s the time and not contract done, appellant the guaranty, right object. After the evil had no payment. It is charged waiving It cannot be the terms lading, tickets, bills claimed that then of its contract it had not been called the upon attached. This was and affidavits so or do to act. appellant’s called to attention was first time We do not think the facts in this ease made compli- certainly a was not against appellant This the draft. a case contract or second letters. alleged first proven, with either the ance This was a letter which and the trial court should guaranty, or not an unconditional judgment appellant. have rendered This credit, conditions but the court nothing by render that take guarantee its suit specifically drafts were stated ment of the recover its in costs this court out, whether at or on and set in court below. collected instances must be both Reversed rendered. appel- through appellant bank. If remitted Rehearing. Motion for On guarantee drafts uncon- lant had intended require ditionally, tity the iden- it was useless asserts in its motion for re- affidavit, hearing wheat the draft was conveyance by 28, at- payment July and the 1910. If it was violating appellee presented contract tached. it was before it debt, security wheat as a lost the was ever drawn. It is dated think, loss, again after such should do not It is asserted that it was drawn on draft with bank. This is based on the papers attached, claim a com- this to be fact that it is addressed to Texas-Oklahoma pliance the terms of the contract. The Texas, signed, “J. C. Rid- er,” following: cashier of admits he understood and beneath is the “The appellant required lading Waggoner Banking Company, the bill of Customer’s customary security it, protested August a and that such was Draft.” This draft was slightest banks. This was not a contract on the is not 1910. There evidence part it, accept draft drawn on that we can find that it was ever payment pro- and in that is the case of Henrietta unlike bank for before ; National Bank v. S. W. test but the is without controver- Rep. by appellee. sy St. 26 Am. cited was not demanded until only protest, compa- It is and not until ny when drawn but had obtained -the wheat from the railroad company annexed a condition this was with which virtue of a wire from Rider. comply. only any way circumstance that can in urged [3] It is that the draft was forward show knew about this draft be- disposition ed in appellee’s stipulate ed, usual course of business fore correspondence. Appellant grain company Waggoner- did not is that the and the Banking Company doing that the draft should be so forward business expressly appellee says .stated could not same town. no- is accepted handle the drafts'unless sent it for direct to evidence conditions part pleaded collection and remittance. That was the letter of It 8th. the tele- McELWEE STATE gram proper course, lee has seen letter as the to follow its own recovery regardless stipulations require- introduced which- relied for by appellant prove case. ments ing that in both evidence and draw- that, expressly It in the letter the draft stated should be done in a certain n it, appel- way, and, having risk, send drafts lant, taken the it should way. consequences. Craw- not handle them that abide the appel- says cashier, rehearing ford, appellee’s The motion for is overruled. ques- obligated the draft lant tion, Craw- of these letters. virtue or 10th 9th ford swears that August, appellant. protested, McELWEE v. STATE. was after the draft had This (Court Appeals April 8, of Criminal of Texas. 1914.) had released railroad after the and the tele- on the wheat to — Argu — Criminal Law Trial appellant got gram Prosecuting Attorney. When of Eider. ment of Where, prosecution violating in a railroad draft and option law, local defendant claimed that he ob- parted possession wheat on whisky prosecutor’s tained the from C. as consignor direction of the the signee: agent, statement, prosecuting ma.de appel- attorney delay argument, failure that the fate of C. rested jury’s verdict, and, found “this comply with the conditions lee to negro have C. guilty, attorney [defendant] not appellant’s under- lant’s defeated jail just as soon as verdict taking. that Eider had drawn insisted returned, improper, cured an directing jury instruction Crawford to consider it. which had other drafts again “I whether do not know [Ed. testified: Note.—Eor other see Criminal Law, Dig. 730.*] prior § I had drawn of those drafts Intoxicating had been sent me to that Liquors 239*) (§ —-Trial *6 Conflicting Contradictory Banking Waggoner I but Instruc do not know Co. tions. they down there had all been what violating Defendant, prosecution in a Bank, or some 'National option whisky by selling the local law certain delivering Texas-Oklaboma Grain son, to the other Company, to S. and it to his claimed that agent merely procure he acted as the of S. to they I All I it. know is especia,Uj whisky money. got I All I drew the know charged, ant, request, at defendant’s if defend- through the Amarillo drafts or compliance get request him with S.’s they correspondent, whisky, procured same, would some and defendant some whisky, merely had no acted interest go money come back off would agent S., guilty, as the the main paid delivered to his constitute a sale to the he but in president Hicks, Mr. vice me.” charge declared that was was pellant, former drafts were testified that whisky S., to defendant by defendant, collection, son sent to his bank for jury son, should they guilty, find defendant unless had a. reason- setting up estop appellant concerning same, able in which case doubt relying acquit. Held, terms and evidenced the instructions conflicting contradictory, ap- were and that the letters. We think the charge defense in effect withdrew defendant’s pellee’s testimony the scale tick- own shows jury. agency from the ques- to the draft not attached ets were Intoxicating [Ed. Note.—Eor other see with its letter of in accordance tion Dig. 331-347; Dig. Liquors, 239.*] Dee. §§ §(cid:127) Cent. prove: Appellee recalled J. C. Eider to drawing of this time of the “Prior Wrong Intoxicating Liquors controversy, I had never attached ful Sale —Indictment—Variance. approached It had not been tickets to drafts. Proof that S. defendant and scale required. get (S.) asked him if he knew quart thought $1.50 son, of to son. he where time, It was called at one replied whisky, that defendant he It was after remember the time. cannot whereupon did, he testi- drawn.” He whisky this draft him and told to S.’s deliver the subsequently did, weigher Pampa; public a sale- showed there was fied there were several whisky S., therefore insufficient and was town, scales and was support charging a an indictment sale to optional farmer who should do left the Appellant’s “They weighing. issued tickets for it.” Intoxicating cases, see [Ed. Note.—Eor other positive § n that none Dig. Dig. Liquors, except things, were 167.*] of attached to it. As Court;. Nacogdoches Appeal from out, there were no scale heretofore set Judge. Ingraham, Geo. E. think neither of the so we letters violating- was convicted of McElwee Will complied with as to the conditions. option appeals. law, and be Ee- the local original cited the authorities Under and remanded. versed opinion, terms performed. Middlebrook, Nacogdoches, strictly is a hard- E. must be V. Lane, Atty. Gen., pellant. bank to Asst. for the- lose the C. E. Appel- be for it. it would State. topic Dig. Rep’r Key-No. cases & section in Dec. &Am. Series Indexes- *For see.same NUMBER