Daughtry v. Blanket State Bank

• Decision Date: 15 July 1931
• Docket Number: No. 7624.,7624.
• Citation: 41 S.W.2d 527
• Parties: DAUGHTRY v. BLANKET STATE BANK et al.
• Court: Texas Court of Appeals

41 S.W.2d 527

DAUGHTRY v. BLANKET STATE BANK et al.

No. 7624.

Court of Civil Appeals of Texas. Austin.

July 15, 1931.

Rehearing Denied July 25, 1931.

Appeal from District Court, Brown County; E. J. Miller, Judge.

Action by Ellis Daughtry against the Blanket State Bank and others. From a judgment of dismissal, plaintiff appeals.

Reversed and remanded.

McGaugh & Darroch, of Brownwood, for appellant.

Woodruff & Holloway, of Brownwood, for appellees.

BLAIR, J.

Appellant, Ellis Daughtry, sued appellees, the Blanket State Bank, and its president and cashier, W. J. Richmond and S. E. Lacy, for damages resulting from the wrongful dishonor of his check for $500 given to J. S. Beck in payment of cattle, alleging that for several months prior to the time appellant gave the check he had been engaged in buying and selling live stock, and had made arrangements with appellee bank through its appellee officers to cash his checks given in payment of live stock, and that upon sale of the live stock the proceeds would be deposited to the credit of the bank, and that, if there were overdrafts, the bank would carry same as loans drawing interest; that appellees refused to pay the $500 check when presented for payment; that before the check was presented appellant had sold and shipped the cattle purchased from Beck and had deposited the net proceeds of $400 to the credit of appellee bank, and of which deposit all of the appellees had knowledge when payment on the check was refused; that the appellee bank and its appellee officers misappropriated the $400 thus deposited, and applied same as a credit upon a note executed by Perry Daughtry to appellee bank with appellant as surety, and which note was not due and was secured by other property; that, when Beck made inquiry of appellees as to whether the proceeds of the sale of the cattle had been deposited in appellee bank, he was informed by the appellees that no such deposit had been made, and all appellees, acting together and for the purpose of protecting the appellee bank and themselves in the unlawful conversion of the $400, told Beck that appellant was a "financial crook," and that, if Beck would prosecute appellant for giving the check and have him arrested, he would get his money; that in thus advising Beck appellees were acting together with the design and for the purpose of injuring and harassing the appellant and for the further purpose of protecting appellee bank and its appellee officers in the unlawful conversion of the $400 realized from the sale of Beck's cattle; that, acting upon and being influenced by the aforesaid statements and conduct of appellees, Beck filed a complaint charging appellant with swindling of more than $50 on account of the dishonor by appellee bank of the check; that upon this complaint appellant was arrested and held under bail to await the action of the grand jury; that after filing the complaint Beck inquired through his attorney by letter whether appellant had deposited the proceeds of the sale of the cattle in appellee bank, and whether appellant had deposited $440 of such proceeds in appellee bank, to which inquiry appellee bank, through its cashier, appellee S. E. Lacy, who, with the knowledge and consent of all the appellees, replied by letter that no such deposit had been made by appellant, and gave no information in regard to appellant having deposited $400 of such proceeds in appellee bank, thereby libeling appellant as a liar, swindler, and thief; that thereafter Beck, acting upon and being influenced by this information, continued prosecution, and the grand jury indicted appellant for swindling of more than $50 on account of the dishonor of his check by appellee bank; but that the criminal prosecution later resulted favorably to appellant, the case being dismissed on motion of the district attorney for want of sufficient evidence to convict. It was further alleged that appellee bank and its appellee officers acted together as conspirators to injure appellant in his reputation and credit as a dealer in live stock in all the unlawful acts aforementioned; that they caused him to be arrested and prosecuted for swindling, greatly embarrassing and humiliating him; that they made and caused to be made the libelous and slanderous reports and statements concerning him, thereby greatly damaging his business, his health, and causing him to incur expenses in defense of himself; and that the aforesaid acts and conduct of appellees were wanton and willful and in disregard of his rights, and designedly done for the purpose of keeping the $400 which he had deposited as proceeds of the sale of Beck's cattle, to appellant's actual and exemplary damages in the sum of $30,500, for which he prayed judgment.

Each of the appellees filed similar special exceptions to the petition of appellant, urging misjoinder of causes of action, which were sustained, the court holding that appellant could not join in one suit an action against the bank for breach of a contract to pay appellant's checks when presented, or to advance money under the contract with a tort action against the bank and its officers for alleged false imprisonment, malicious prosecution, slander, and libel; and, upon appellant's refusing to elect against which appellee he would proceed, the cause was dismissed; hence this appeal.

The court erred in sustaining the special exceptions, holding a misjoinder of causes of action in this suit. It is a settled rule in this state that, in order to avoid a multiplicity of suits, one may sue in the same action to recover damages for breach of contract and for tort, where both claims grow out of the same or related transactions, and are so immediately connected that they may be conveniently litigated together without undue prejudice to the parties, and especially is this the rule where the gist of the action is for tort rather than for breach of contract. Stuart v. Western Union Tel. Co., 66 Tex. 580, 18 S. W. 351, 59 Am. Rep. 623; Miliken & Co. v. Callahan Co., 69 Tex. 205, 6 S. W. 681; Houston, etc., Ry. Co. v. Shirley, 54 Tex. 125; Hooks v. Fitzenrieter, 76 Tex. 277, 13 S. W. 230; Cobb v. Barber, 92 Tex. 309, 47 S. W. 963; Shirley v. Waco Ry. Co., 78 Tex. 131, 10 S. W. 543, in which it was held that a plaintiff might sue in one action to recover damages for breach of a road construction contract and for conversion of property by the unlawful levy of an attachment in another's name for the purpose of disrupting the contract for the construction of the road. See, also, Cumberland State Bank v. Ison, 218 Ky. 412, 291 S. W. 405; Western Nat'l Bank v. White, 62 Tex. Civ. App. 374, 131 S. W. 828; Bowden v. Bridgman (Tex. Civ. App.) 141 S. W. 1043; Ross v. Cleveland (Tex. Civ. App.) 133 S. W. 315; Kirby Lumber Co. v. Chambers, 41 Tex. Civ. App. 632, 95 S. W. 607; Craig v. City of Dallas (Tex. Civ. App.) 20 S.W.(2d) 154; Townes' Texas Pleadings (2d) 218.

The gist of appellant's suit is to recover damages for false imprisonment, malicious prosecution, slander, and libel, all of which matters grew out of the wrongful dishonor of his check and the conversion of the proceeds of the sale of the cattle purchased with the check and deposited in appellee bank, the petition alleging that appellees acted together in breaching or causing the breach of the contract to pay the check; in converting or causing to be converted the proceeds of the sale of the cattle purchased with the check and deposited in appellee bank; in thereafter making slanderous statements and writing libelous letters concerning these transactions;...