Central Bank & Trust Co. v. Davis

• Decision Date: 15 May 1912
• Citation: 149 S.W. 290
• Court: Texas Court of Appeals
• Parties: CENTRAL BANK & TRUST CO. v. DAVIS.<SMALL><SUP>†</SUP></SMALL>

Page 290

149 S.W. 290

CENTRAL BANK & TRUST CO. v. DAVIS.^†

Court of Civil Appeals of Texas. Austin.

May 15, 1912.

Rehearing Denied June 26, 1912.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Action by the Central Bank & Trust Company of Houston against T. H. Davis, as receiver of the Union Trust Company. Judgment for defendant, and plaintiff appeals, and defendant files cross-assignments of error. Affirmed.

John G. Tod, of Houston, and Gregory, Batts & Brooks, of Austin, for appellant. J. B. Robertson, of Austin, for appellee.

Findings of Fact.

JENKINS, J.

This case was tried before the court without a jury. The court filed its conclusions of fact and law, which, in so far as they affect the issues on this appeal, were substantially as follows:

(a) That the officers of the Union Trust Company of San Antonio, Tex., on December 3, 1909, made a deal with F. E. Pye, president of the Central Bank & Trust Company of Houston, Tex., whereby it was agreed that said Pye would purchase from the Union Trust Company 1,510 shares of its stock at the par value of $100 each, to be paid for $10,000 in cash and the remainder on subsequent dates, as agreed upon, the $10,000 cash to be left on deposit with the Central Bank & Trust Company; that thereupon said Pye drew his check in favor of the Union Bank & Trust Company for $10,000, and handed the same to the president of the Union Bank & Trust Company, who indorsed it and handed it back to said Pye; that the said Pye handed the same to August De Zavalla, the cashier of said Central Bank & Trust Company, and thereupon the said Pye and the said De Zavalla left the room of the president of said Central Bank & Trust Company, in which said transaction took place, and went into the bank, and returned and handed the president of the Union Trust Company a duplicate deposit slip for $10,000, signed by said Pye.

(b) The said Pye did not have any money on deposit in said Central Bank & Trust Company at said time, but he was authorized to overdraw on said bank, and, had said check been presented at said time, it would have been paid.

(c) No entry was ever made on the books of the Central Bank & Trust Company relative to said $10,000 check or said deposit slip.

(d) On January 8, 1910, the officers of the Union Bank & Trust Company were in Houston, attempting to negotiate a loan through said Pye, and informed him that it was necessary for them to have $10,000 transmitted at once to New York; that on said day the said Pye deposited to the credit of the Union Trust Company $10,000, and the Central Bank & Trust Company wired the proper bank in New York to that effect.

(e) The said officers of the Union Bank & Trust Company knew that said De Zavalla was interested in the purchase of said bank stock; that his interest was adverse to the Central Bank & Trust Company, for which reason said certificate of deposit was not binding on the Central Bank & Trust Company.

(f) On January 6, 1910, the Farmers' State Bank of Shiner, Tex., drew its draft on the Union Trust Company in favor of the Central Bank & Trust Company of Houston for the sum of $4,500, and that said Shiner bank at said time had on deposit with said Union Trust Company $4,722.68; that said draft was mailed to the Central Bank & Trust Company for collection and credit. The same was received by said Trust Company on January 8th, and credited to the Shiner bank; that on said day the Central Bank & Trust Company mailed said check to the Union Trust Company, but, on account of the letter containing the same not being stamped, the same was never delivered to the Union Trust Company, but was afterwards found on the desk of the said Pye in the month of August, 1910.

(g) If the letter containing said $4,500 had been stamped, it would have been received at the office of the Union Trust Company at San Antonio, Tex., on January 9, 1910, and would have been entered on the books of said Trust Company as a credit in favor of the Central Bank & Trust Company.

(h) That said Shiner bank did not have on deposit with the Union Trust Company any deposit or credit, except a general deposit of $4,722.68, which was an open account, such as is maintained in the ordinary course of business of one bank with another.

(i) That the Central Bank & Trust Company was the correspondent of the Shiner bank, and it constantly sent checks, drafts, and other papers drawn upon banks to said Central Bank & Trust Company for collection and credit; that upon receipt of the same the amounts thereof were credited on the books of the Central Bank & Trust Company to the Shiner bank, and such paper was forwarded to the banks upon which the same was drawn. When such paper was not paid when presented, it was returned to the said Central Bank & Trust Company, and the same would be charged back against the Shiner bank, and the credit theretofore made in favor of such bank would, in effect, be canceled, and the dishonored paper returned to the Shiner bank.

(j) That from the course of dealing between the Shiner bank and the Houston bank the Houston bank was merely the agent of the Shiner bank to collect said draft of $4,500, and therefore there was no assignment of said bank's deposit arising from said transaction.

(k) The Union Trust Company was placed in the hands of a receiver on the 10th day of January, 1910, and is insolvent.

The above findings of fact by the trial court are sustained by the evidence herein, and are adopted as our findings. The Union Bank & Trust Company asked for judgment for said $10,000, as shown by said deposit slip, and also for the $10,000 deposited in the Houston bank to its credit by said Pye. The Houston bank asked judgment upon a note of the Union Trust Company held by it for $20,000, and for foreclosure of its lien upon certain collateral. The court rendered judgment in favor of the Central Bank & Trust Company for $7,599.34, with foreclosure...