Brazell v. Irene Independent School Dist.

• Citation: 276 S.W. 1108
• Decision Date: 06 July 1925
• Docket Number: (No. 189.)
• Parties: BRAZELL v. IRENE INDEPENDENT SCHOOL DIST. et al.
• Court: Court of Appeals of Texas

276 S.W. 1108

BRAZELL v. IRENE INDEPENDENT SCHOOL DIST. et al.

(No. 189.)

Court of Civil Appeals of Texas. Waco.

July 6, 1925.

Rehearing Granted November 5, 1925.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Suit by I. T. Brazell against the Irene Independent School District and the First National Bank of Irene. From a judgment sustaining exceptions of the bank to the petition and granting a plea in abatement and judgment for the School District on the merits, plaintiff appeals. Appeal dismissed.

Hurt & Jacks, of Dallas, for appellant.

Frazier & Averitte, of Hillsboro, for appellees.

GALLAGHER, C. J.

Appellant, I. T. Brazell, brought this suit in the district court against appellees, Independent School District and the First National Bank of Irene, in which suit he sought recovery against both of said appellees in the sum of $19,716.62. He sought such recovery against the school district on the ground that the same was the balance due him on a certain contract for the erection of a schoolhouse for said district. He further alleged, upon information and belief, that the sum of money so sued for was held by appellee bank, either to the credit of the school district or to the credit of appellant. In this connection he further alleged, on information and belief, that the school district had theretofore issued certain checks or warrants drawn by it upon said bank in favor of appellant, amounting in the aggregate to the sum so sued for, and had delivered the same to said bank. He further alleged that while said checks or warrants were by their terms payable to him, that none of the same had been delivered to him, indorsed by him, or even seen by him, but that they had all been delivered directly to said bank. He alleged that said checks or warrants were each drawn on some particular fund belonging to said district in the hands of said bank. While not affirmatively alleged, it is necessarily inferred from appellant's allegations, taken as a whole, that said bank was at that time the duly qualified and acting treasurer or depository of the funds of said district, and that as such depository it had in its hands funds belonging to said district and subject to be applied to the payment of said checks or warrants, sufficient to discharge the same. He prayed for judgment against both the school district and the bank for said balance so claimed to be due. Appellant also sought to have appellees restrained by injunction from taking certain action in the premises, which he alleged they were threatening to take, and would take, if not so restrained, but the nature of the relief so prayed for is immaterial to the disposition of this appeal. Appellant, by supplemental petition, alleged that the school district had appointed the said bank its agent in the premises, and had turned over to it certain of the moneys owed by said district to appellant for the performance of his contract, and that the school district and the bank were claiming that they had expended all the balance due him on said contract in the payment of labor and material bills incurred by him in executing the same. He alleged that such action was without his knowledge or consent, except as to some particular items, and asked for an accounting by both the school district and the bank, and that they be required to show how much of such moneys had been so expended and for what purposes, and to further show by what authority such expenditures were made.

Appellees, who were represented by the same counsel, filed a joint answer to appellant's petition. Appellee bank also filed a plea in abatement, in which it excepted to appellant's petition on the ground of misjoinder of causes of action and parties defendant. The court sustained said exception, and abated appellant's suit as to said bank.

Appellee school district then filed a supplemental answer, in which it alleged that it had been directed by appellant to deposit all moneys owed by it to appellant under his said contract in the said First National Bank of Irene, Texas, to his credit, to be used by his representatives in the construction of said building, and that it had turned over the entire sum due appellant under said contract to said bank under and by virtue of said instruction, and that all the money so turned over to said bank had been checked out by appellant or by his representatives, and that it, the said district, was not indebted to appellant in any sum whatever.

There was a trial by the court and judgment in favor of the school district, it being the only remaining defendant in the cause. The case is before us for review on appeal.

Appellant complains of the action of the court in abating his suit against said bank. Such action having been had in response to an exception, appellant's contention must be determined by the allegations of his pleadings. He alleged that each of said checks or warrants was drawn on some particular fund in the hands of the bank and belonging to said school district. One of the same was alleged to have been by its terms payable out of the school district's fire insurance account, one out of its bond account, and several of the remainder out of its building fund in the hands of said bank. The drawing of such checks or warrants on said particular funds as between the parties amounted to an equitable assignment of a sufficient amount of each such fund, respectively, to discharge the check or checks so drawn upon the same. Harris County v. Campbell, 68 Tex. 22, 27, 3 S. W. 243, 2 Am. St. Rep. 467; Hess & Skinner Engineering Co. v. Turney, 110 Tex. 148, 154-155, 216 S. W. 621; New York Life Ins. Co. v. Patterson & Wallace, 35 Tex. Civ. App. 447, 80 S. W. 1058, 1061 (writ refused); A. A. Fielder Lumber Co. v. Smith (Tex. Civ. App.) 151 S. W. 605, 607, 610; Central Bank & Trust Co. v. Davis (Tex. Civ. App.) 149 S. W. 290, 291. While such assignments, under the allegations of appellant's petition, did not extinguish the debt owed...