Farmers' & Merchants' State Bank v. Guffey, (No. 2084.)

• Decision Date: 28 February 1923
• Docket Number: (No. 2084.)
• Citation: 255 S.W. 462
• Parties: FARMERS' & MERCHANTS' STATE BANK OF LELIA LAKE v. GUFFEY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

255 S.W. 462

FARMERS' & MERCHANTS' STATE BANK OF LELIA LAKE v. GUFFEY et al.^*

(No. 2084.)

Court of Civil Appeals of Texas. Amarillo.

February 28, 1923.

Rehearing Denied November 7, 1923.

Error from District Court, Donley County; Henry S. Bishop, Judge.

Action by Roy Guffey against the Farmers' & Merchants' State Bank of Lelia Lake and another, in which the named defendant asserted a cross-action against the National Surety Company of New York, which cross-action the circuit court dismissed. Judgment against defendants, and defendant named brings error, joining as defendants in error Roy Guffey and L. A. Byrd. Affirmed.

R. H. Beville, of Clarendon, and Veale & Lumpkin, of Amarillo, for plaintiff in error.

Cole & Simpson, of Clarendon, and Umphres & Miller, of Amarillo, for defendants in error.

KLETT, J.

Defendant in error Roy Guffey sued the Farmers' & Merchants' State Bank of Lelia Lake, Tex., and its former cashier, L. A. Byrd, the plaintiff below, alleging that from May 21, 1920, to October 1, 1920, he was a customer of said bank and that during the period mentioned defendants named, without plaintiff's authority, knowledge, or consent, misappropriated and misapplied plaintiff's deposits and wrongfully charged his account with said bank to the extent of $4,033.50. He also alleged that at the same time he was a partner with the defendant Byrd, and that the partnership was conducted under the firm name of Farm Power Implement Company. It was averred that all of the plaintiff's transactions were with the defendant Byrd as the duly authorized and acting cashier of the bank, and that all the deposits and credits referred to were the individual property of the plaintiff. Briefly stated, the wrongs complained of are charged to have occurred on different dates in the following form and manner: On May 21, 1920, $500, charged to plaintiff's account and credited to the account of the partnership by defendant Byrd, under the pretense of a loan; October 1, 1920, $200, charged against plaintiff and appropriated by one or the other of the defendants; September 4, 1920, $100, charged against plaintiff's account and credited to defendant Byrd's account; May 1, 1920, $1,000 cash, deposited by plaintiff, to whom deposit slip was issued but credited to account of the partnership instead of plaintiff; September 21, 1920, two items, a check of $975, deposited by plaintiff but cashed by defendant Byrd through another bank, without giving plaintiff credit and a note of $1,325, left at the bank by plaintiff but discounted through another bank without giving plaintiff credit, the proceeds of the two items having been credited to the account of the partnership. Plaintiff further alleges in his petition that defendants have actually had and received said sums of money; that they are indebted to him; and that they refuse to pay his checks or account to him. He denies in his petition that he has received any benefit from the acts alleged.

Defendant bank's answer contains general and special exceptions, general denial, special pleas of estoppel and accord and satisfaction, and cross-action against the National Surety Company of New York, alleged to be surety on an indemnity bond executed to protect the defendant bank against liability for acts of defendant Byrd as cashier.

The plaintiff, as well as the surety company, filed a plea of misjoinder, which was sustained by dismissing the cross-action against the surety company. The trial of the case before a jury resulted in a judgment for plaintiff against both defendants for $1,500. The record is here for review by writ of error filed by the bank. Roy Guffey and L. A. Byrd are made defendants in error, and the supersedeas bond is payable to them only. The surety company was not made a party in the petition for writ of error, and there is no showing that it has appeared, or been cited to appear, or accepted or waived service of citation, in this proceeding.

The first proposition this court is asked to consider is the one based on the action of the trial court in dismissing the bank's cross-action against the surety company. We are of the opinion that this court is without jurisdiction to dispose of an issue affecting a party not before it. The failure of plaintiff in error to make the surety company a party to the proceeding for writ of error must be deemed an acquiescence in that part of the judgment rendered against the surety company. Weems v. Watson, 91 Tex. 35, 40 S. W. 722.

The second proposition asserts that the verdict of $1,500 is not supported by pleadings and proof. The bank's contention is that the jury was bound to allow the whole or half of each item found for plaintiff, and that it could not find a verdict of $1,500 without acting arbitrarily. A careful consideration of the record requires us to overrule this contention. It is true that the plaintiff alleges that he and the bank cashier were partners, but he distinctly states that the deposits were his individual property. The issue was one for the jury. It could find in favor of the plaintiff for the whole of the two items of $500 and $1,000, and against plaintiff on the others, or it could find in favor of plaintiff for one-half of the items of $200, $500, $975, and $1,325, and in either event return a verdict of $1,500 for plaintiff. It is also true plaintiff alleges the $1,325 note was sold by defendant Byrd for $1,258.50, but the amount of the note was prima facie its value (O'Neal v. Bush & Tillar, 108 Tex. 246, 173 S. W. 869, 177 S. W. 953, 191 S. W. 1134) and constituted the amount in controversy which the jury had the right to consider, notwithstanding the prayer was based on a price for which the note sold. McCaulley v. Bank (Tex. Civ. App.) 175 S. W. 728; Railway Co. v. Hamrick (Tex. Civ. App.) 231 S. W. 166; Railway Co. v. Coal Co., 102 Tex. 478, 119 S. W. 294. Even though the verdict cannot be reconciled with any tenable theory, defendant fails to show he has been injured by the alleged error where the evidence is sufficient to support a larger recovery. Brunson v. Blair, 44 Tex. Civ. App. 43, 97 S. W. 337; Samples v. Wever, 56 Tex. Civ. App. 562, 121 S. W. 1129 (writ refused); Railway Co. v. Nance, 45 Tex. Civ. App. 394, 101 S. W. 294 (writ refused).

The bank insists under its third proposition that it was not bound by the acts of its cashier while acting in the dual capacity of cashier for the bank and agent of the partnership firm, composed of plaintiff and the cashier. It cites a number of cases, including that of Amarillo National Bank v. Harrell (Tex. Civ. App.) 159 S. W. 858. The question presented is one of difficulty, ordinarily, but whether the abstract proposition announced is the correct statement of a rule without qualification is not presented for determination by this court. The bank undertook to raise the question under this proposition in three ways, viz. by special exception to plaintiff's petition, objection to charge of the court, and by request for submission of special issues. The special exceptions to the petition are not regarded as sufficient to raise the question, for the reason that the petition particularly avers that the deposits and credits in controversy were the plaintiff's individual property, and that, although some of the deposits were credited to the account of Farm Power Implement Company, others were credited to the account of defendant Byrd, and that plaintiff had received no benefits therefrom, but that both defendants refused to pay plaintiff or to account to him. If the petition be taken as true, for the purpose of considering the exceptions, defendant bank and its cashier, charged with receiving the plaintiff's individual funds, have misapplied same under one guise or another, and then refused to account to their creditor. It would not matter to what account the funds had been credited or transferred, or how the bank books had been kept or statements rendered, if the cash, checks, and notes belonged to plaintiff. The plaintiff's petition does not admit that the partner in the bank had any interest in the property or authority over it, but on the contrary negatives such fact; hence it is clear that, so far as the demurrers go, the defendant Byrd was acting as cashier for the bank in the apparent scope of his employment and not as agent for the partnership firm, composed of himself and plaintiff, when he accepted the plaintiff's individual deposits, and that there is no apparent inconsistency of duty under such...