City Nat. Bank in Childress v. Phillips Petroleum Co., 3736.

• Decision Date: 17 February 1932
• Docket Number: No. 3736.,3736.
• Citation: 47 S.W.2d 357
• Parties: CITY NAT. BANK IN CHILDRESS v. PHILLIPS PETROLEUM CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

47 S.W.2d 357

CITY NAT. BANK IN CHILDRESS v. PHILLIPS PETROLEUM CO.^*

No. 3736.

Court of Civil Appeals of Texas. Amarillo.

February 17, 1932.

Rehearing Denied March 9, 1932.

Appeal from District Court, Childress County; A. J. Fires, Judge.

Action by the Phillips Petroleum Company against the City National Bank in Childress. From a judgment for plaintiff, defendant appeals.

Affirmed.

E. E. Diggs, of Childress, for appellant.

Don Emery and Walter L. Barnes, both of Amarillo, for appellee.

HALL, C. J.

The appellee, petroleum company, sued the City National Bank to recover the proceeds of eight certain checks, aggregating $669.35, together with interest and costs, which it is alleged said bank had converted.

The petition shows that the Michie Motor Company bought petroleum products from the Phillips Company and in payment therefor delivered its checks to W. T. Goodson, the agent of said company in Childress. It is further alleged that Goodson was authorized to represent the Phillips Company in the sale of gasoline and other products, and to collect from customers the price thereof under the terms of a written commission contract between the Phillips Company and Goodson. That said commission contract contained, among other provisions, the following:

"Said agent is not under any circumstances allowed to retain any moneys or checks, etc., collected by him as agent for any purpose but must deposit same as hereinafter set forth and money due said agent will be paid monthly by check from office of the Company.

"All sales (cash or credit) of the commodities furnished to the agent by the Company shall be made and invoiced to the purchaser and in the name of the Company and the agent shall collect for the same and deposit in original form all moneys and checks to the credit and in the name of the Company at the bank designated by it, all to be recorded on forms furnished by the Company."

It is further alleged that the First National Bank of Childress was designated as the depository. That the Michie Company was a customer of the appellant, City National Bank, and drew its said eight checks payable to the Phillips Petroleum Company upon said bank. That the said Goodson, or persons unknown, indorsed said checks, wholly without authority from the Phillips Petroleum Company, presented the same for payment to the appellant bank, which bank accepted and cashed all of said checks, and that each of said checks was afterwards charged to the account of the Michie Motor Company in the appellant bank. That Goodson never accounted to appellee for the proceeds of said checks.

The case was tried to a jury, and after both parties had introduced their evidence the trial judge sustained appellee's motion for an instructed verdict in its favor for the amount sued for. From a judgment entered in accordance with the verdict, the bank has appealed.

Since the trial was to a jury, the court did not err in refusing to file findings of fact and conclusions of law.

We deem a further statement of the pleadings unnecessary.

Appellant submits several propositions of law, which will not be considered in the order presented.

The appellee asserts that the trial court was justified in directing a verdict under the provisions of the Negotiable Instruments Act (article 5932, § 21), as follows: "A signature by `procuration' operates as notice that the agent has but a limited authority to sign, and the principal is bound only in case the agent in so signing acted within the actual limits of his authority."

In our opinion this section does not apply to this case. It was not shown that the appellant bank had any actual notice of the commission contract between Goodson and the Phillips Company or that his authority as agent was limited by such contract.

In 1 Daniel...