Weinstein v. National Bank

• Decision Date: 04 November 1887
• Citation: 6 S.W. 171
• Parties: WEINSTEIN v. NATIONAL BANK OF JEFFERSON.
• Court: Texas Supreme Court

6 S.W. 171

WEINSTEIN v. NATIONAL BANK OF JEFFERSON.

Supreme Court of Texas.

November 4, 1887.

Appeal from district court, Marion county; W. P. McLEAN, Judge.

Todd & Hudgins, for appellant. C. A. Culberson, for appellee.

GAINES, J.

The plaintiff in the court below, who is appellant here, was, during the years 1885 and 1886, a merchant in the city of Jefferson, and a depositor in the bank of the defendant corporation. He was absent during the period of the transactions involved in this suit; that is to say, from December, 1885, to August, 1886; but his business was in charge of his brother, A. Weinstein, who was his agent and attorney in fact. On the twenty-seventh of February, and also on the twelfth of June, 1886, the cashier of the bank balanced plaintiff's pass-book, and returned all checks which had been paid by the bank up to these dates respectively. In August, 1886, A. Weinstein discovered, or claimed to have discovered, that a number of checks, on dates extending from December 5, 1885, to June 4, 1886, which had been paid by the bank and charged to plaintiff's account, had been forged. The aggregate amount was $1,082.05. These checks were embraced in the accounts balanced in the pass-book, and were returned to plaintiff's agent with the pass-book when balanced at the dates named above. Plaintiff made demand of the bank for the money charged against him on the checks alleged to have been forged, and, payment having been refused, brought this suit for its recovery. The defendant pleaded a general denial, and also, in substance, that plaintiff's agent having, at the dates above named received the pass-book and checks, and having failed to use due diligence to detect and denounce the forgeries within a reasonable time plaintiff was thereby estopped from questioning the correctness of the account. The court overruled an exception to the plea of estoppel, and plaintiff excepted to the ruling, and now assigns it as error. The ground of the exception was that the plea did not "allege or show any injury or loss to defendant occasioned by or resulting from the delay on part of plaintiff" in discovering and giving notice of the forgeries. The exceptions were well taken to the original answer. It contained no averment of any loss by reason of the laches of plaintiff's agent or that its condition had been in any manner changed for the worse by his negligence. We do not see that such loss or injury was a necessary consequence of the facts set forth in the answer, and hence, in our opinion, in order to make it good as a plea of estoppel, it should have been alleged. But in a trial amendment, filed by leave of the court, (it is to be presumed after the exceptions had been sustained, though no order sustaining it appears in the record,) defendant avers that, by reason of the "negligence and failure" to examine and report any errors or forgeries therein, it was "debarred the right and opportunity of protecting itself," and, further, that if the account of February 27th had been examined, and the forgeries reported, defendant would not have paid the other checks alleged to have been forged. The first part of this allegation is vague and indefinite; but we think it good upon a general demurrer. May v. Taylor, 22 Tex. 348; George v. Lemon, 19 Tex. 151. A special exception on account of vagueness and generality should have been sustained, but no such exception was filed.

Appellant's second assignment is that "the court erred in its charge to the jury in paragraphs 9, 10, and 11 of said charge, in this: that said instructions debarred plaintiff from any recovery for any amount, notwithstanding all the checks may have been forged, if the jury found a failure on the part of plaintiff to examine and inspect the accounts and checks, which were never returned to him until February 27, 1886." We do not think the assignment well taken. It may be that these paragraphs, if they stood alone, would subject the charge to the criticism which is made upon it. In paragraph 9 the jury are told that if, by reason of the failure of A. Weinstein to examine the account and report the forgeries, "the opportunity of protection on part of defendant was lost, then plaintiff would not be entitled to recover." The eleventh paragraph contains substantially the same proposition. We are not prepared to say that, under the peculiar facts of the case, these paragraphs of the instructions, taken by themselves, would have been calculated to mislead. But in the sixth paragraph the jury had been previously instructed, in effect, that the bank would be liable unless Weinstein had neglected to examine the account and report the forgeries "for such a length of time as worked an injury to the bank;" and in the seventh they are further charged, in effect, that the bank was injured if, by reason of Weinstein's negligence and delay, it lost the means of recovering the money which it would have had if the discovery and report had been made in a reasonable time. Taking the charge as a whole, the jury must have understood that they were not warranted in finding for the...