City Nat. Bank v. American Express Co.

• Decision Date: 24 April 1929
• Docket Number: (No. 1236-5268.)
• Citation: 16 S.W.2d 278
• Parties: CITY NAT. BANK OF GALVESTON et al. v. AMERICAN EXPRESS CO.
• Court: Texas Supreme Court

16 S.W.2d 278

CITY NAT. BANK OF GALVESTON et al. v. AMERICAN EXPRESS CO.

(No. 1236-5268.)

Commission of Appeals of Texas, Section A.

April 24, 1929.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by the City National Bank of Galveston against the American Express Company and another. Judgment in plaintiff's favor against defendant named was reversed and remanded by the Court of Civil Appeals , and plaintiff brings error. Judgment of Court of Civil Appeals affirmed.

McDonald & Wayman, H. E. Kleinecke, Jr., and Louis J. Dibrell, all of Galveston, for plaintiffs in error.

Armstrong & Cranford, of Galveston, for defendant in error.

HARVEY, P. J.

This suit was brought by the City National Bank of Galveston against the American Express Company and Joe Varnell on certain "Traveler's Cheques." The instruments declared upon and introduced in evidence are similar in form, varying only in serial number and amount. The form of the instruments is as follows:

"U. S. Dollar Traveler's Cheque A3,035,440 Three Cipher Three Five Four Four Cipher When countersigned below with this signature: W. L. Hines Jun 11, 1923 Before cashing write here city and date. American Express Company At its paying agencies. Pay this Cheque from our Balance to the order of City National Bank, Galveston, Tex. $10.00. In United States Ten Dollars In all other countries at current buying rate For Bankers' Cheques on New York Countersign here in presence of person cashing. W. L. Hines Jas. F. Fargo Treasurer This cheque is redeemable only at the Company's Offices and Bankers in United States."

On the margin of each check was printed the following words: "Guard your traveler's cheques as you would money. When cashing fill out cheque completely and countersign."

James F. Fargo was treasurer of the express company, and as such was duly authorized to sign the checks, as he did, in behalf of the express company.

The defendant Joe Varnell made no defense, but asserted the liability of the express company under the checks by adopting the pleadings of the plaintiff bank. The express company denied liability under the checks on the ground that the instruments had never been delivered, in that same had been stolen from the agent of the express company, the First National Bank of Barnsdall, Okl., while they were incomplete, and had been subsequently completed and negotiated without authority.

At the trial, the express company offered testimony to prove that the checks were taken by bank robbers, with force and arms, from the custody of the Oklahoma bank; that at the time they were so taken they were in the form above shown, except that no signature appeared in the spaces where the name "W. L. Hines" appears written on the instruments, and no date, and the name of no payee appeared on the instruments; that afterwards the blank spaces in the checks were filled in without authority from either the express company or the Oklahoma bank; that the checks in the incomplete form just stated had been placed by the express company in the custody of the Oklahoma bank, with authority in the latter bank to put same in circulation by having the person to whom the checks might be issued sign his name in the blank space for that purpose in the upper left-hand corner of each instrument; that the blank checks were held in custody by the Oklahoma bank under the terms of the following instrument, executed by said bank, to wit:

"Received in trust from the American Express Company, Travelers cheques of the American Express Company as follows:— (Describing the cheques). The undersigned accepts responsibility for the safekeeping of said cheques and the due issue thereof, and agrees to account to the American Express Company therefor, and for the proceeds received from the sale thereof. The said cheques, until sold and the proceeds thereof when sold, shall at all times remain the property of the American Express Company. The First National Bank, Barnsdall, Oklahoma, H. O. McSpadden, Cashier."

On the objection of the Galveston bank, all the above-stated testimony offered by the express company was excluded from evidence.

The record discloses that, shortly after the robbery occurred, one of the robbers was in Galveston, with the stolen checks in his possession. He had previously signed the name "W. L. Hines" in the upper left corner of each instrument. He induced Joe Varnell to cash all said checks. He transferred the checks to Varnell, and at the time of the transfer countersigned each check with the signature "W. L. Hines" in the lower left-hand corner of the instrument. Afterwards, on June 11, 1923, Varnell negotiated the checks to the Galveston bank, receiving from said bank the face value of each check. At the time the latter bank acquired the checks, it filled in the two remaining blank spaces on each check, by filling in one space with the...