*1 535 support of con- their act to invoke such tention they W. C. authorized to BIGGERS & CO. v. FARMERS’ that appellant’s for and taken MERCHANTS’ NAT. BANK OF land condemned filing public petition purposes by KAUFMAN road et al. taking praying and for such condemnation No. 3839. county, county judge Harris and with the only special act, Appeals and Court of that of such Civil reason of Texas. Texarkana. required thereof, they not reason 10, 1930. June 116, 2, provisions Re- of title resort c. to the 1925, prescribes Rehearing which vised July 10, Civil Statutes Denied 1930. procedure in the condemna- to be followed property pub- taking private for tion and purposes. lic road agree Though appellees with we should procedure special authorized the that such taken act pleaded proven, by appellees, we and if agree can such act be invoked cannot proof. pleading such and without ap- apparent from the record It is pellees any proceedings in the trial did not purported condemnation

court assert that begun proceeding was un instituted them ap statute, any special and it is further der parent attempt appellees of did not special proof any existence such fer attempt they plead statute, or did nor special provisions prove of such stat that the complied by them with. Under ute had been late, facts, appellees come too such state of time, appeal for first to avail now on special statute. such themselves of appellees special now statute of which The unquestionably is a

seek to avail themselves special Caldwell Crosser local act. v. and 822, S.W.(2d) 827; (Tex. App.) Aus 20 Civ. (Tex. App.) 288 S. tin Com. v. Patton Bros. Finley, 171, 182; 54 v. Tex. S. Clark W. 343. it said: is the case first cited Thirty-Ninth Legis special act “The validating bonds Cochran Coun lature Bros, law, special ty, local or Austin was a App.) (Tex. S. 288 W. and Com. take v. Patton judicial local notice of courts do (Civ. S.W.(2d) App.) also Anderson, See Legislature, Holmes v. laws of the litigant to avail himself Tex. 481. For a 59 of such law, necessary special it is to both special plead prove This it. act evidence, the record not introduced objection, testimony, without discloses oral introduced, passed by the such bill that Legislature, Governor, regis tered, became a law validated the bonds.” Having the conclusion reached refusing ju- to maintain trial erred court dismissing of the cause risdiction same plea appellees, it becomes judgment duty and to our to reverse re- hearing upon merits, mand cause its accordingly ordered. is and remanded.

Reversed *3 ceptances equiva with cotton or their tickets lents He attached.” the re not authorized to proceeds ceive By special or cashier’s checks. this method way paying purchased, and A. L. for the cotton Nash, proven, seller have the would sign of the cotton a draft on W. through appellee pur Co. bank price chase of the cotton thereto and attach tickets, the cotton L. and then Nash would sign “accepted” it to draft and deliver then, the seller. The upon presentation acceptance, pay to *4 of the assignee the seller or his transferee or the thereof, doing amount charge and after so would paid Biggers the amount &' to C.W. inCo. its account at the bank. bank and The actually knew, appears its cashier as without dispute, authority of the of and the extent authority the As was so A. conferred B. Nash. shown, Biggers spe W. C. had Co. & cially arranged with and the Farm authorized ers’ & Merchants’ National Bank of Kauf pay money pur man to the B. for the cotton by Nash, Nash, chased A. to the not A. B. the “trade but to payee acceptances in named equivalents with the cotton tickets or their at acceptances” given by tached to the the Smithdeal, Shook, Spence Bowyer, & of accepted by seller and A. B. It in Nash. was Hallas, Whipple, Waxahachie, and Tom of keeping, appeared, arrangement as with this appellant. for by Biggers so made with the C. & bank W. Bond, Terrell, Angus Thos. R. of and G. pay signed to amount Co. the of the draft Wynne Morrow, and Nestor both of Kauf- accepted by Nash, the seller and A. B. that the man, appellees. for form of the to be used the parties prepared. was The cashier testified: BEVT, (after stating above). J. the case as prepared “The bank the forms and delivered acceptances. them B. to A. Nash to for appellant be used is these It the insistence of the * * (1) findings jury The had that bank! these the * of the were con printed expense gave trary forms at evidence, its (2) own and to the and the evidence re Nash, agent Biggers quired them to A. B. for W. C. an instructed in verdict its favor. We bottom, & Co. opinion That form has a line at the in are of nearly the that is more cor right-hand comer, printed say the under which is (1) rect to the evidence shows that the way filling the word ‘seller.’ The usual of out bank and its cashier did know A. B. “that acceptances' one of the was the for seller to not Nash was authorized to receive cashier’s sign it and to state the number of accepted bales of checks from the bank for drafts cotton lading for which a bill purchased of or cotton defendant,” him for for cotton the tickets testified: “I attached.” (2) “executing passing The cashier further acceptanc and and the question understood that the receiving usual and in and es therefor cashier’s customary way handling payment” of the business of in checks was not usual “the and Biggers through -way W. O. to have & customary Co. handling A. Nash of B. such transactions sign parties findings the seller the draft. The usual between the thereto.” The customary way, paid and importance, when I very a draft are of vital for it is evident signed by cotton, give the seller of the was to that if the cashier’s in checks favor of the money Kemp the the to the seller of cotton.” All the which the Eirst Bank of National of had not been previous acceptances present issued and delivered the not would loss cotton, bank had with itself as the as “seller” of the have been occasioned. that view of the payee amount, findings the facts conclude we that the the jury based on drafts that banks” in against preponderance had from “come other are the of the evi genuine against weight with the cotton tickets at dence and The the evidence. explained by “During dispute tached. As the cashier: shows evidence without W. years Biggers (1) all these dling that B. Nash & Oo. A. had been han A. E. authorized Nash to buy generally business, “anybody from where cotton the cases he had buy Maybank Kemp points, would at cotton for sale” Kaufman and other cotton or and including Kemp, (2) payment, they send them to our bank and to execute and deliv for payment purchased, er in would bought for the cotton so be handled he draft —whoever checks, not or cashier’s the cotton from would draw draft on checks “trade ac Biggers Go.,& through since Biggers Nash would B. the bank its & us to then come in the hank with Co. cashier up knew draft that A. B. Nash was au- and take Biggers thorized W. C. advanced acceptance. had Co. to is- After we & have an sued and gave to money he receive pay and the cashier’s cheeks the for cotton on this the to Kemp complete believed, however, bank. It bank, the is acceptance, to that the an the us him, peremptory required instruction to was not an accommodation and as transaction evidence, the cause Bank, entirety, sign Seller.’ considered in its be- M. him ‘E. & would for going there advanced evidence had to show that we after That be done W. O. & Co. money pay The derived some benefit from cotton. acceptance years.” the first receiving doing six credit there- or that for five had been for at the First National Bank. In this record effect, circumstances, legal In such only this latter issue was the issue—'and the accept- signing these bank at time issue, we think —that should been tried Big- was, against W. C. as ances as “seller” jury. Accordingly judgment before the is relationship cotton gers Co., in the reversed cause remanded. rights lienor, was entitled relationship. The remedies incident to Rehearing. On Motion for a ' against interest an bank had a claim If the evidence should the same on the be ad- cotton, incident asi an in vancing created next trial of the shown case as was on this the seller on cotton appeal respecting the cause of action on the are circumstances Such or his transferee. not 423, three drafts Nos. then respecting ac- the four *5 similar those to respects such drafts a verdict should di- be suit, ceptances could the cashier appellant. rected in favor of the The issue reasonably so known. be to should held arising by jury for decision be the paid the instances In each those respecting the cause action on draft No. forwarding (cid:127)directly drafts the the banks to might other of- unless evidence be precise upon of the seller. direction fered trial would warrant a different acceptances B.A. in suit four facts of‘the holding explanation respect to draft. such With this statements, had Nash, through of false means appellant the motions of both the drafts bank for the cashier execute the payable to rehearing and the for a are overruled. by order and bank’s to drafts to to attach as “seller" worthless. fact which tickets cotton deliver to execute cashier had the He payable or- to checks him cashier’s to Kemp. National Bank of First der kind of the certain stated the acts But before and were acts done Were never v. SHOEMAKER HARRINGTON et al. Biggers contemplated & Oo. to W. No. 12340. authority appearance on be done. That part B. Nash not caused A. Appeals Court of Civil Texas. Fort Worth. Go., B. Nash himself. A. (cid:127)0. 21, 1930. June issuing Executing cash- done, checks, acts unlike ier’s as was Rehearing July 19, Denied n other customary course in the usual and acts n ofbusiness dealings, and were known be As the cashier: testified the cashier. for that sea- the drafts handled “Out of all son, represented in the book as the stubs showing me, you no occasion other are on now payable to the cheek made was a cashier’s Kfempi. Well, Bank First at it National unusual, might a a be it was little little ordinary, way. to handle out I B. Nash said relied what to me. implicit him.” I had confidencein (Tex. Quoting from Gunter v. Robinson Civ. App.) 112 W. 135: “It does not S. follow agent, employed a course an as matter of make, negotiate, contract, or conclude has authority payments to receive incidental may which become due under such contract.” evidence, responsibility In view of the agent’s fraud three of ac- to be imputed

ceptances in cannot suit O.W.