Citizens' Bank & Trust Co. v. Yantis

• Decision Date: 13 October 1926
• Docket Number: (No. 7609.)
• Citation: 287 S.W. 505
• Parties: CITIZENS' BANK & TRUST CO. et al. v. YANTIS.
• Court: Texas Court of Appeals

287 S.W. 505

CITIZENS' BANK & TRUST CO. et al. v. YANTIS.

(No. 7609.)

Court of Civil Appeals of Texas. San Antonio.

October 13, 1926.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by R. M. Yantis against the Citizens' Bank & Trust Company and others. From order granting plaintiff's motion for a new trial after judgment on directed verdict for defendants, defendants appeal. Order granting new trial reversed, and judgment rendered.

Cunningham & Moursund and W. J. Bergstrom, all of San Antonio, for appellants.

John F. Onion and Leonard Brown, both of San Antonio, for appellee.

COBBS, J.

Appellee says the statement of the suit as made by appellants is adopted; hence we include it in our opinion for the statement of the case:

"This is an appeal from an order granting a motion for a new trial. The suit was brought by R. M. Yantis against Citizens' Bank & Trust Company and the Commercial National Bank of San Antonio, as its successor, to recover the value of a note for $1,600 executed by Ben Cooper and others, payable to Jesse and J. C. Yantis, which note plaintiff alleged had been converted by Citizens' Bank & Trust Company.

"Plaintiff alleged: `That on or about the 1st day of February, A. D. 1914, said note was placed by said J. C. and Jesse Yantis with defendant Citizens' Bank & Trust Company for the purpose of safe-keeping, the defendant agreeing to either buy said note or find a purchaser for the same; that, after receiving said note under the circumstances above set out, said defendant unlawfully appropriated and converted the same to its own use and benefit, claiming the same, and collecting the monthly installments paid by Ben Cooper, and appropriating and converting the money so paid to their own use and benefit.'

"Plaintiff alleged further that one year thereafter J. C. Yantis and Jesse Yantis assigned said note to plaintiff, and also transferred unto plaintiff any claim which they might have had for the alleged conversion.

"The defendants answered by general demurrer and general denial, and further alleged that for a long time prior to January 7, 1914, Jesse Yantis and J. C. Yantis had been doing all, or a large part, of their banking business with Citizens' Bank & Trust Company, keeping deposits with said bank, and borrowing money from it frequently, in both large and small amounts; that on or about said date said Cooper note had been delivered to said bank, and pledged to secure the payment of an $8,700 note by Jesse Yantis and J. C. Yantis; that installments aggregating $250 had been collected on said Cooper note prior to June 5, 1914, and duly credited on said $8,700 note, and that several new notes had been given, in each instance for the balance due on the indebtedness represented by the $8,700 note, after crediting the installments so received on the Cooper note; that on June 5, 1914, there remained due $8,450, for which Jesse and J. C. Yantis executed a new note due July 5, 1914; that default was made in the payment of said note, and a judgment rendered thereon June 29, 1915, for $9,628.01, being balance due after allowing credits aggregating $500, credited thereon as received in installments on the Cooper note; that the proceeds from collateral secured by real estate and foreclosed on in the same suit amounted to $2,239.40; that the Cooper note was paid in full; the installments being collected as they accrued up to July 5, 1916, and on July 12, 1916, the remaining principal and interest being paid thereon; that said judgment is entitled to the additional credits represented by payments on the Cooper note, leaving a large balance unpaid.

"Defendants further alleged that neither Jesse nor J. C. Yantis ever demanded of the bank the return of the Cooper note; that, on the contrary, they each acquiesced in, approved, confirmed, and ratified the holding thereof by Citizens' Bank & Trust Company as collateral security for its said indebtedness, and acquiesced in, approved, confirmed, and ratified said bank and trust company's collecting said note, and its right to do so, and its right to apply, and its application of, the proceeds of such collections to the satisfaction of its claim against them; that no contention was made by either of them for more than a year to the effect that said Citizens' Bank & Trust Company was not entitled to apply the proceeds of said note to the payment of its claim; that, if they undertook to assign the same to plaintiff as alleged by him, such assignment was made for the purpose, and with the intent, of defrauding their creditors, they being at that time, and in fact at all times, after the maturity of said $8,700 note, insolvent; that the purported sale or assignment of said note made to plaintiff, if any, was taken by the plaintiff with full knowledge and notice of the facts herein alleged, and of the said fraudulent intent on the part of said J. C. Yantis and Jesse Yantis, and no value was paid therefor, and such alleged transfer, if made, was made for the purpose of attempting to fraudulently deprive Citizens' Bank & Trust Company of said note and its proceeds; that any such pretended assignment was void by reason of the facts herein stated, and the said Citizens' Bank & Trust Company, by reason of the facts herein stated, had the right to apply the proceeds of the said note and the said note itself, at its face value, to the satisfaction of its said indebtedness evidenced by said note and said judgment, and such application was duly made, and defendants are now entitled to have the same adjudged to be a satisfaction to that extent of the debt evidenced by said note and judgment.

"At the conclusion of all the evidence, the court instructed the jury to return a verdict for the defendants.

"A verdict in accordance with the court's instructions was returned and judgment rendered thereon in favor of defendants.

"The plaintiff's amended motion for a new trial was heard on the 4th day of December, 1925, and was granted and a new trial ordered, to which action of the court the defendants then and there in open court duly excepted, and gave notice of appeal to this court."

The case of Tarbutton v. Ambriz, reported in (Tex. Civ. App.) 282 S. W. 891, opinion by Justice Smith, in which a writ of error was refused, was the first appeal under the new law authorizing either party to appeal from the ruling of the trial court in setting aside the judgment or the verdict of the jury and granting the motion for a new trial.

We concur in the statement made by appellee:

"The trial court granted plaintiff's motion for a new trial, holding that the evidence presented an issue of fact to be passed upon by the jury, and that he had erred in peremptorily instructing the jury. The question for this court to determine is whether the trial court erred in giving such peremptory instruction. If the evidence showed that as a matter of law the plaintiff was not entitled to recover, the trial court did not err in so instructing the jury, and if the evidence, under the pleadings, raised any issue of fact material to the determination of the case, the trial court did err, and correctly granted a new trial."

In order to give to appellee the very fullest benefit of his claim that there was an issue of fact that should have passed to the...