Bull v. Novice State Bank

• Decision Date: 14 March 1923
• Docket Number: (No. 6555.)
• Citation: 250 S.W. 232
• Parties: BULL v. NOVICE STATE BANK.
• Court: Texas Court of Appeals

250 S.W. 232

BULL v. NOVICE STATE BANK.

(No. 6555.)

Court of Civil Appeals of Texas. Austin.

March 14, 1923.

Rehearing Denied April 4, 1923.

Appeal from Coleman County Court; L. G. Mathews, Judge.

Suit by R. C. Bull against the Novice State Bank. From a judgment for a sum less than prayed for, plaintiff appeals. Affirmed in part, and reversed and rendered in part.

Snodgrass & Dibrell, of Coleman, for appellant.

Critz & Woodward, of Coleman, for appellee.

Opinion.

BLAIR, J.

Appellant's brief states the nature and result of this case, which we find to be substantially correct, as follows:

"This suit was brought in county court of Coleman county, Tex., May 26, 1921, by appellant, R. C. Bull, against appellee, Novice State Bank, of Novice, Tex., a state banking corporation, for the sum of $230, alleged to have been deposited by him in said bank, and never checked out, but which he had demanded and appellee refused to pay. Appellee answered by general and special exception, general denial, and special answer, claiming that appellant had checked out $20.72 more than he deposited.

"The case was heard before the court without a jury, and judgment rendered December 7, 1921, in favor of appellant for $56.20, to which judgment the appellant excepted on the ground that under the pleadings and evidence he was entitled to a larger recovery against appellee, and he gave notice of appeal to this court."

By this appeal appellant contends that the court erred in failing to render judgment in his behalf upon a certain check for the sum of $154.84, in addition to that rendered herein; which check he alleges was deposited to his credit in appellee bank, on November 18, 1920, drawn in his favor by F. C. Behrend, through W. A. Hughen, on the First National Bank of Coleman, Texas, and by it paid in full on November 29, 1920. Appellee contends that the said check for $154.84 was received by it for collection only, and that it used due diligence in presenting same for acceptance through its correspondent bank, the Coleman National Bank of Coleman, Tex., to the drawee, the First National Bank of Coleman, Tex., and that the payment thereon was stopped or refused, and that upon its return appellee charged it against the account of appellant, upon his indorsement thereon. Upon this issue the trial court found in favor of appellee, and appellant appeals.

We adopt the following testimony as presented by the statement of facts concerning the transaction relative to the $154.84 check in controversy as our own.

H. D. Ayers testified as follows:

"My name is H. D. Ayers. I am cashier of the Novice State Bank, and was such cashier of the Novice State Bank during the year 1920. Mr. R. C. Bull had an account in our bank in 1920. That account of Mr. Bull's began before I went with the bank, and was there when I went there. Mr. F. C. Behrend had no account with the Novice State Bank. Beginning with the 1st of July, 1920, I will give you a list of the deposits of Mr. R. C. Bull with the Novice State Bank. * * *

"The check you show me is a check for $154.84, which was charged to the account of Mr. Bull. That shows on the statement November 7, 1920. That check was deposited to Mr. Bull's credit. That check was sent back from the First National to the Coleman National Bank to us. The payment on that check was stopped, with the notation that the payment was stopped or payment refused or something of that kind. I have that as November 7th; however, that must have been a mistake, as it must have been in December; that check was returned to us, and was the same check I had given Mr. Bull credit for in our bank. As a matter of fact that check had been paid by the First National, and was marked "paid" by them."

Plaintiff here offered in evidence the check identified by the witness, which is as follows:

                              "Coleman, Tex. 11—18—1920
                

"First National Bank of Coleman.

"Pay to R. C. Bull $154.84, one hundred fifty-four 84/100 dollars. 47 turkeys, 553#. F. C. Behrend by W. A. Hughen. [Stamp.] The Novice State Bank, Novice, Texas, Paid."

On back of check:

"Payment stopped. R. C. Bull. Marked paid in error. Canceled in error. [Stamp.]

"Pay to the order of any bank, banker, or trust company, Nov. 27th, 1920. Prior indorsements guaranteed. Novice State Bank, Novice, Texas.

"The Coleman National Bank, Coleman, Texas. Paid through clearing house November 29, 1920. No. 1.

"I believe that that check was deposited in our bank on November 29th, and I have a deposit slip covering that; that deposit slip shows that it was November 27 instead of 29. That check seems to have been marked `Paid' by the First National Bank on November 20th. It does not say what bank it was, as it is just a stamp that said `Paid' that is a perforation stamp. There was another check for $25.09 that was also credited to Mr. Bull's account; those checks were all drawn on the account of F. C. Behrend in the First National Bank, and each of them deposited by the payee at our bank. Those checks were all dishonored by the First National Bank, and payment refused. They were turned back to our account, and I charged them against the account of R. C. Bull. Mr. Bull did not tell me to charge them back to his account. I did not charge them to the account of the parties that I had given credit for. The check for $154.84 is the same check that I credited to the account of Mr. Bull on November 22d; that check was sent by me to the Coleman National Bank, and from the Coleman National Bank to the First National, and then returned to the Coleman National and returned to me, with the statement that payment had been refused. I never collected any of those checks."

F. C. Behrend testified as follows:

"My name is F. C. Behrend; I am acquainted with R. C. Bull. Mr. R. C. Bull had authority from Mr. Hughen to sign these checks; that is, it occurred this way: He kept on going right ahead buying chickens, and I let it go at that. I will say that the old gentleman came to me and asked me, if he could buy chickens for me, or, `Will you stake me?' I said `Yes; when I come back.' I went to visit my sister, and told him that I would be back in about 30 days, and then we would start business. He said that was plenty of time. He said, `There are plenty of turkeys and chickens, and I want to do some business.' While I had agreed to stake him, I didn't want him to check on that bank, for my statement came on on the 1st of October. I saw those checks by R. C. Bull, and in the meantime Mr. Bull had sent me plenty of chickens, and when he would send me the chickens I would send him a check that night. When these checks came in I stopped the checks. Mr. W. A. Hughen was working for me, and was left in charge of my business. He had full authority to represent me in my business, and to sign my name to checks. Mr. Hughen had the authority to sign his name to these checks for everything that he bought. Those checks by R. C. Bull were not his signature. The check for $154.84 which is before me is dated November 18th. I received that check back from the First National Bank on the 1st of December. The bank is responsible to me for that check. I don't know whether that check has been charged up to my account or not. I turned the check back to them after that. I have returned from the north on November 18, 1920."

W. A. Hughen testified as follows:

"During the fall of 1920, in September, October, and November, I was working for Mr. F. C. Behrend. During the month of August I was in charge of Mr. Behrend's business in Coleman. I had authority to sign Mr. Behrend's name to checks at that time. I signed the check which you show me for $154.84. I sent that check to Mr. R. C. Bull by letter. On my return home that night I found Mr. R. C. Bull at my house, and told him about sending him that letter and that check. That was for a bunch of turkeys."

R. H. Alexander testified as follows:

"My name is R. H. Alexander. I am cashier of the First National Bank, and have been for a number of years. The check which you exhibit to me for $154.84, dated November 18, 1920, has on the perforation stamp `Paid 11—29—20.' I think that that is the Coleman National Bank stamp. That has also the notation on the back `Canceled in error.' That is in the handwriting of Mr. Milton Collins, who is assistant...