City Nat'l Bank of Fort Worth v. Stout
| Decision Date | 13 May 1884 |
| Docket Number | Case No. 4998. |
| Citation | 61 Tex. 567 |
| Parties | THE CITY NATIONAL BANK OF FORT WORTH v. J. N. STOUT. |
| Court | Texas Supreme Court |
APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.
This was an action brought by the appellee, Stout, against the City National Bank of Fort Worth for the recovery of $1,428.29, which plaintiff alleged he deposited with defendant, and that defendant failed and refused to pay him that amount, although requested so to do.
The appellant, in its answer, substantially admitted that plaintiff deposited the money and that it had never been repaid, but set up in avoidance of plaintiff's demand and pleaded in offset as follows:
That on the 21st day of September, 1881, plaintiff went into defendant's banking house and requested defendant to sell him certain exchange on the city of New York to the amount of $500, and to make its draft or bill of exchange on some bank in New York for the $500, payable to one Frank Crandall, who was plaintiff's son-in-law; that the bank then, through its cashier, S. W. Lomax, drew its draft as follows:
+---------------------------------------------------------+
¦“$500. ¦THE CITY NATIONAL BANK OF FORT WORTH, ¦
+-----------+---------------------------------------------¦
¦(Original) ¦FORT WORTH, TEXAS, Sept. 21, 1881. ¦
+---------------------------------------------------------¦
¦Pay to the order of Frank Crandall five thousand dollars.¦
+---------------------------------------------------------¦
¦ ¦S. W. LOMAX, Cashier. ¦
+---------------------------------------------------------¦
¦To Donnell, Lawson & Simpson, New York. ¦
+---------------------------------------------------------¦
¦No. 875.” ¦ ¦
+---------------------------------------------------------+
and delivered the same to plaintiff; that the figures on the margin of the draft were correct ($500) at the time the draft was made, but had afterward been changed by the addition thereto of another figure 0, by some one unknown to defendant, and that the bankers Donnell, Lawson & Simpson, upon whom said draft was drawn, had in good faith cashed the same, believing it to be a bona fide draft for the sum of $5,000; that defendant did not discover the mistake until October 22, 1881, long after the draft had been paid to plaintiff and his assignees for the full amount of $5,000, and upon settlement with said Donnell, Lawson & Simpson.
That defendant immediately upon discovering the error, and upon ascertaining that Donnell, Lawson & Simpson had cashed the draft for the sum of $5,000, demanded of plaintiff an explanation thereof, and that plaintiff repay to defendant the sum of $4,500, which it alleged defendant by mistake paid and caused to be paid to him and to Crandall, but that neither plaintiff nor Crandall would explain to defendant their fraudulent action, and they both refused to repay to defendant the sum of $4,500 or any part thereof; but insisted upon their right to take advantage of the mistake.
That Crandall was a non-resident of the state and had no property of any kind in the state, and that plaintiff had no property liable to execution.
Defendant then set up that plaintiff purchased the $5,000 draft; that plaintiff and his payees received the benefit of the same, and that plaintiff thereby became liable and promised defendant to pay it the sum of $4,500 balance.
The plaintiff replied by general and special exceptions, and as ground of special exception, (1) that defendant set up damages in tort as a defense against an action for debt; (2) that the several counts were inconsistent with each other, and (3) that defendant set up irrelevant matter, viz.: that Crandall was plaintiff's son-in-law, and that defendant had asked for and been refused an explanation by plaintiff; and in reply to the plea in reconvention set up that the draft was sold by the bank at the request of A. T. Wooten, who paid defendant for the same; and that Wooten paid the same on an indebtedness which he, Wooten, owed plaintiff; that in total ignorance that the draft was for $5,000, plaintiff gave the draft to defendant and requested the bank to mail it to Crandall, which the bank did, and that plaintiff made a gift of the draft to Crandall through the bank; that if the draft was for the sum of $5,000 instead of for $500, then it was issued by defendant and mailed by defendant to Crandall, and plaintiff was then innocent that any mistake had occurred, and in law should not be chargeable with the negligence of defendant and to account for its carelessness.
On the 21st day of May, 1883, both parties announced ready for trial, and waived a jury, and plaintiff's petition was read, when court adjourned over until the 22d inst., without further action in the case.
On the reassembling of court on the 22d inst., and before the trial had progressed, defendant asked leave of the court to withdraw its announcement of ready for trial, and present an application for a continuance; and the...
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