Edmiston v. Strickland, Ewers & Wilkins

• Decision Date: 29 June 1938
• Docket Number: No. 10315.,10315.
• Citation: 120 S.W.2d 641
• Court: Texas Court of Appeals
• Parties: EDMISTON et al. v. STRICKLAND, EWERS & WILKINS.

120 S.W.2d 641

EDMISTON et al. v. STRICKLAND, EWERS & WILKINS.

No. 10315.

Court of Civil Appeals of Texas. San Antonio.

June 29, 1938.

Rehearing Denied November 2, 1938.

Error from District Court, Ninety-Second District, Hidalgo County; Bryce Ferguson, Judge.

Suit by Prentis P. Edmiston and others against Strickland, Ewers & Wilkins to recover amount of cashier's check held by them on ground that check was deposited with and held by defendants in trust for plaintiffs. Judgment was rendered upon directed verdict for defendants, and plaintiffs bring error. On motion for rehearing.

Affirmed.

H. H. Dunn, of Edinburg, and Bliss & Daffan, of San Antonio, for appellants.

R. D. Cox, Jr., of Mission, for appellees.

SMITH, Chief Justice.

In the year 1929 J. C. Epperson entered into a contract with Hidalgo County to collect delinquent taxes owing to the County, upon a commission basis. The validity of that contract was afterwards litigated in the courts. Cameron v. Earnest, Tex. Civ.App., 34 S.W.2d 685; Tarpley v. Epperson, Tex.Civ.App., 50 S.W.2d 919; Id., 125 Tex. 63, 79 S.W.2d 1081; State v. Epperson, 121 Tex. 80, 42 S.W.2d 228.

In performing his contract with the County, Epperson employed or borrowed money from various persons and agencies, including Prentis P. Edmiston, Wade H. Bliss, and Edwards Abstract Company, hereinafter called plaintiffs, who, in the early part of 1933, brought suits upon their claims against him, for $697.70, $5,262.23, and $1,139.48, respectively. At the same time the plaintiffs had writs of garnishment issued against Tarpley, the county tax collector, to impound funds, then assumed to be owing by the county to Epperson on said contract, to be subjected to the payment of plaintiffs' claims. Subsequently plaintiffs impleaded American State Bank & Trust Company of Edinburg in their suit against Epperson, seeking to charge it with their claims against him, on the theory that it had converted to its own use the funds owing by the county to Epperson.

In the meantime, on January 12, 1934, Epperson sold his contract with the county, and all his rights thereunder, to said Bank & Trust Company, and on the next day, January 13th, the Bank in turn transferred and assigned the said contract back to the county, along with an acquittance of the county from further liability thereunder.

In purchasing the contract from Epperson the Bank took cognizance of the pending garnishment proceedings, as well as plaintiffs' suits on their claims against Epperson, and withheld, out of the agreed purchase price to be paid Epperson, the sum of $2,250 as a protection against the claims of plaintiffs. We must assume, in view of a directed verdict, that this sum was arrived at by prorating the amount of said purchase price among Epperson's creditors, according to the amounts of their claims, whereby said sum of $2,250 was ascertained as plaintiffs' portion. The sum was covered into a cashier's check issued by the bank and made payable, and thereupon delivered, to the bank's attorneys, Strickland, Ewers and Wilkins, hereinafter called defendants, under the following stipulations, evidenced by that firm's letter to Epperson:

                    "Edinburg, Texas, January 12, 1934
                "Mr. J. C. Epperson
                  "Edinburg, Texas
                

"Dear Sir:

"We are holding in trust the sum of $2,250.00 in the form of Cashier's Check of the American State Bank & Trust Company, Edinburg, Texas, for the purpose of indemnifying the American State Bank and Trust Company against loss in connection wth certain garnishment suits heretofore filed by Wade H. Bliss, Edwards Abstract Company and Prentiss Edmiston against H. Tarpley, Garnishee. In the event any judgment is recovered against Mr. Tarpley in either or all of these cases, we are authorized to use this amount in payment thereof. Otherwise to hold same subject to your order for the purpose of settling the claims of the respective plaintiffs in these cases. * * *

                    "Very truly yours
                       "Strickland, Ewers and Wilkins
                                 "By J. F. Ewers."
                

Plaintiffs prosecuted their suits against Epperson and recovered judgments against him in the sums prayed for, but judgment was denied them as against the Bank, and their garnishment suits against the tax collector went against them. That judgment was afterwards affirmed by this Court and writ of error was dismissed for want of jurisdiction by the Supreme Court. Bliss v. American State Bank & Trust Co., Tex.Civ.App., 90 S.W.2d 630. The controversy between all the parties interested was also litigated, in various aspects, in the following reported cases: Cameron v. Earnest, Tex.Civ.App., 34 S.W.2d 685; Tarpley v. Epperson, Tex.Civ.App., 50 S. W.2d 919; Tarpley v. Epperson, 125 Tex. 63, 79 S.W.2d 1081; State v. Epperson, 121 Tex. 80, 42 S.W.2d 228.

In the meantime, the bank having transferred to Hidalgo County the delinquent tax contract it had acquired from Epperson, the latter instituted a suit to rescind the sale of the contract to the Bank, alleging that he had been defrauded by the Bank and the County in the transaction, which movement had its repercussions in a case pending on writ of error in the Supreme Court, involving the validity of the original contract between Epperson and the County. Tarpley v. Epperson, Tax Collector, et al., 125 Tex. 63, 79 S.W.2d 1081. About that time, also, one Bell brought suit against the Bank in the federal court at Brownsville, alleging that he was a creditor of Epperson, and that the Bank, having converted Epperson's funds, was liable to Bell on said account

In this muddled situation it appears that Epperson, for a consideration of $2,250 in cash, agreed to and did dismiss his...