Davis v. Panhandle Nat. Bank

• Decision Date: 13 February 1895
• Citation: 29 S.W. 926
• Parties: DAVIS v. PANHANDLE NAT. BANK et al.
• Court: Texas Court of Appeals

29 S.W. 926

DAVIS v. PANHANDLE NAT. BANK et al.

Court of Civil Appeals of Texas.

February 13, 1895.

Appeal from district court, Wichita county; J. A. Templeton, Special Judge.

Action by E. P. Davis against the Panhandle National Bank and another for conversion of money. Judgment for defendants, and plaintiff appeals. Reversed.

Carrigan & Hughes, for appellant. R. E. Huff, for appellees.

HEAD, J.

Appellant sued appellees in the court below to recover $1,367.43, the proceeds of three cars of calves, the property of the former, shipped to commission merchants in Chicago in the name of M. C. Hancock, and by them remitted to appellee bank. Hancock had an open account with the bank, upon which he was due it $857.82. The amount aforesaid was applied to this account, and Hancock allowed to check out the balance. Appellant alleged that appellees not only had notice that this money belonged to him, but that they agreed to send it to the First National Bank of Albany, to his credit, when collected. Appellee McCutchen was the cashier of his coappellee, and was its representative, with whom appellant alleged the contract to have been made.

Upon the trial in the court below, appellant requested a charge to the effect that he was entitled to judgment against the bank for the $857.82 applied to Hancock's indebtedness, irrespective of the question of notice on the part of appellees that the money so applied belonged to him. Under the facts of this case, we are of opinion that such a charge should have been given. There is neither allegation nor evidence that the bank lost its debt upon Hancock by reason of this transaction, before it was advised that he was not entitled to this credit; and, in the absence of such evidence, we do not see upon what principle it should be allowed to retain this money. The evidence is undisputed that the proceeds of these three cars of calves, as between Hancock and appellant, did in fact belong to the latter, and that the former had no right whatever to use it. Under these circumstances, it is perfectly manifest that the bank would have no right to appropriate appellant's money to the satisfaction of an account which Hancock already owed it.

As to whether or not it should be protected in the amount it allowed Hancock to check out after its receipt, will depend upon the question of notice. If it had notice of the real ownership of these funds, and that Hancock was not authorized to use them, at the time it honored his checks, it...