City Nat. Bank of Spur v. Rhome-Farmer Livestock Commission Co.

• Decision Date: 24 November 1923
• Docket Number: (No. 10441.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 259 S.W. 184
• Parties: CITY NAT. BANK OF SPUR v. RHOME-FARMER LIVESTOCK COMMISSION CO.
• Court: Texas Court of Appeals

Page 184

259 S.W. 184

CITY NAT. BANK OF SPUR v. RHOME-FARMER LIVESTOCK COMMISSION CO.

(No. 10441.)^*

Court of Civil Appeals of Texas. Ft. Worth.

November 24, 1923.

Rehearing Denied January 12, 1924.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by the Rhome-Farmer Livestock Commission Company against the City National Bank of Spur and another. Judgment for plaintiff, and named defendant appeals. Affirmed.

W. D. Wilson, of Spur, and McLean, Scott & McLean and Sam Sayers, all of Fort Worth, for appellant.

Bryan, Stone, Wade & Agerton, of Fort Worth, for appellee.

BUCK, J.

The Rhome-Farmer Livestock Commission Company, a corporation, domiciled at Fort Worth, hereinafter called plaintiff or commission company, sued Perry Fite, at the time of suit living in Shackelford county, but at the time of the transactions hereinafter detailed living at Spur, Dickens county, and the City National Bank of Spur, hereinafter called bank, to recover $6,500 alleged to be due and owing plaintiff by reason of plaintiff's having paid a certain draft in that amount drawn on it by Fite and in favor of the bank, on February 9, 1918. Plaintiff alleged that it had theretofore agreed with Fite that if he would buy cattle and ship them to it, Fite could draw on it for an amount equal to or less than the value of the cattle then or shortly thereafter to be shipped to it at Fort Worth; that Fite represented to plaintiff that he would draw a draft on plaintiff when he had accumulated a carload of cattle ready for shipment; that several drafts had been drawn by Fite on plaintiff, and always before this time a carload of cattle would arrive within a few days, from the sale of which plaintiff would reimburse itself to the amount of the draft; that on or about February 9, 1918, a draft was drawn on plaintiff by Fite for $6,500, and made payable to the bank, and in due course was paid by plaintiff.

Plaintiff further alleged that the defendant bank, its agents, officers, and managing officials, were aware and had full knowledge of the arrangement and agreement existing between plaintiff and defendant Fite, and said bank knew that said draft of February 9, 1918, as well as the several drafts drawn prior thereto by the defendant Fite on plaintiff in favor of said bank, was for cattle to be shipped at the time to the plaintiff, and that such draft represented the price and value of the cattle to be thus shipped; that notwithstanding such knowledge of the facts, said bank either made foreclosure of some pretended mortgage or lien on said cattle then held by Fite, or in some other manner took possession thereof and converted the same to its own use and benefit, and that the reasonable market value of said cattle was then and there $6,500; that although said Fite issued and delivered said draft to defendant bank, he, in violation of his promises to plaintiff, failed to ship to it the livestock represented thereby, and wholly failed and refused to ship said livestock or any livestock whatever to plaintiff, although he knew that plaintiff would pay said draft, as it did pay the same, and as a direct result of such acts and the false and fraudulent representations of said Fite and of the conversion of said livestock by said bank, plaintiff suffered loss and was actually damaged in the said sum of $6,500. Plaintiff further alleged that it was informed and believed, and therefore averred as a fact, that said bank and its managaing officers refused to permit the said Fite to ship said livestock to plaintiff, and directed him not to do so, all of which was acquiesced in and agreed to by the said Fite, but induced him to sell and dispose of said livestock to other parties and deliver the proceeds thereof to it, which proceeds it converted to its own use and benefit; that said draft was drawn and the said bank so received the said draft with full knowledge of all the said facts and with full knowledge that the said Fite was not going to and would not ship the said livestock to plaintiff, and with full knowledge that plaintiff would pay the said draft on presentation, and with full knowledge that plaintiff would rely upon the previous representations and statements of said Fite in so paying the same, and that said bank received the proceeds of said draft and converted the same to its own use and benefit.

In the alternative, plaintiff alleged that the defendant bank received the proceeds of said draft and applied same upon some pre-existing debt which the defendant Fite then owed said bank. This allegation seems supported by the evidence that the said defendants, and each of them, then and there wrongfully confederated, conspired, and acted together for the purpose of wrongfully and fraudulently depriving the plaintiff of the value of said draft.

The defendant bank answered by way of a plea of privilege to be sued in Dickens county, by a general demurrer, certain special exceptions, a general denial, and by special denial that it knew anything of any representations, promises, agreement, or understanding, if any, made by said Fite with plaintiff as an inducement to pay said draft, or that it knew anything as to the purpose for which the proceeds of said draft were to be used by said Fite. It alleged that it had informed Fite that on account of his indebtedness to it it could not make any further advances to him for the purchase of livestock, and that it would be necessary for him to make arrangements with some one else to advance him money for the purchase of livestock; that said Fite then informed the said bank that the plaintiff would advance him the money with which to carry on his said business of buying, selling, and butchering livestock, and thereupon drew a draft on plaintiff for $6,500 and deposited the same with this defendant for credit to his account on the books of this defendant, and said Fite thereafter checked out, used, and appropriated said deposit.

Other allegations were contained in both the pleadings of the plaintiff and the defendant bank, but sufficient has been given to explain the issues of fact involved.

The defendant Fite did not answer, and a default judgment was taken in favor of plaintiff as to him. Upon trial, the following special issues were submitted to the jury and answered as indicated:

"(1) Was there an agreement or understanding between plaintiff, Rhome-Farmer Livestock Commission Company and the defendant Perry Fite, prior to the drawing of the $6,500 draft on February 9, 1918, to the effect that at or about the time of the drawing of such draft, said Fite would ship to the plaintiff cattle approximately equal in value to said draft?" Answer: Yes.

"(2) Did the defendant City National Bank of Spur have knowledge of such agreement or understanding between plaintiff and Perry Fite, if any existed, at the time said draft was drawn by said Fite?" Answer: Yes.

"(3) Was there any agreement or understanding between Perry Fite and the defendant City National Bank of Spur, at the time said draft for $6,500 was drawn, that Perry Fite would not ship to plaintiff cattle of the approximate value of said draft?" Answer: Yes.

"(4) Was Perry Fite prevented by the defendant City National Bank of Spur from carrying out any agreement or understanding, if any, between him and the plaintiff to ship to plaintiff cattle to cover said $6,500 draft?" Answer: Yes.

"(5) Did Perry Fite and the defendant bank act together in drawing the $6,500 draft for the purpose of getting the money thereon without making a shipment of cattle to plaintiff approximately equal in value to the amount of draft?" Answer: Yes.

On this verdict, the court entered judgment in favor of the plaintiff and against defendants Perry Fite and the City National Bank of Spur for $6,500, with interest at 6 per cent. from March 1, 1918, and from this judgment the defendant bank has appealed.

The trial court, upon the presentation of the defendant bank's plea of privilege and the controverting affidavit thereto of the plaintiff, and upon a statement by counsel of the issues involved in the suit, stated that it appeared that the issues involved in the plea of privilege were practically the same as those involved in the cause on its merits, and he would hear the evidence before ruling finally on the plea of privilege. In its first three propositions, the appellant urges error in the action of the trial court in not first determining the issues involved in the plea of privilege and in the controverting affidavit thereto, and in the action of the trial court in failing and refusing to instruct the jury to find for the defendant on the question of venue. The last proposition is based on the alleged insufficiency of the controverting affidavit and plea to bring the same within one of the exceptions set out in the venue statute. The controverting affidavit of the plaintiff set up three grounds for sustaining the venue in Tarrant county. The first was that G. H. Connell, the president of the defendant bank, at the time of the filing of the suit and at the time the transactions occurred upon which the suit was based, lived in Tarrant county, and all of the official acts done by him as president of said defendant bank were done and performed in Tarrant county. This ground has been abandoned by plaintiff. The second ground was that the defendant bank, together with Fite, was guilty of perpetrating a fraud upon plaintiff, by reason of the acts alleged in plaintiff's petition, and that one of the overt acts done in pursuance of said fraudulent conspiracy was the presentation to the plaintiff at Fort Worth of the draft drawn by the defendant Fite in favor of the defendant bank, and the payment of said draft by the plaintiff in Tarrant county. The third ground for sustaining jurisdiction in Tarrant county was that the trial court had jurisdiction over Perry Fite, by reason of the allegations contained in plaintiff's petition. But evidently reliance to...