First Nat. Bank in Dallas v. Pierce

• Decision Date: 21 March 1934
• Docket Number: No. 1675-6159.,1675-6159.
• Parties: FIRST NAT. BANK IN DALLAS v. PIERCE.
• Court: Texas Supreme Court

Page 756

69 S.W.2d 756

FIRST NAT. BANK IN DALLAS v. PIERCE.

No. 1675-6159.

Commission of Appeals of Texas, Section A.

March 21, 1934.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by C. A. Pierce against the First National Bank in Dallas and others, in which named defendant filed a plea of privilege. Such plea was overruled, and the bank appealed to the Court of Civil Appeals. On certified questions.

Questions answered.

Coke & Coke and Thomas G. Murnane, all of Dallas, for appellant.

Levens, McWhorter & Howard, of Lubbock, for appellee.

HARVEY, Presiding Judge.

The Court of Civil Appeals for the Seventh district has submitted the following certificate containing certified questions:

"C. A. Pierce, plaintiff, filed this suit in the District Court of Lubbock County against W. A. Myrick, Sr., H. W. Stanton, George C. Wolffarth, and the First National Bank in Dallas, having its residence and principal place of business in Dallas County, Texas, as defendants.

"The Bank filed its plea of privilege to be sued in the county of its residence. This plea was overruled by the Trial Court and appeal had to this Court.

"The appellant, by two propositions, presents to us alleged errors of the Trial Court in overruling defendant Bank's plea of privilege. The first is that plaintiff's controverting affidavit to defendant's plea of privilege was insufficient as a compliance with the terms of article 2007, R. C. S., 1925.

"The second is that the plaintiff's petition and proof discloses three distinct and severable causes of action, — one against the Bank, which, if good at all, could only be based upon a claim for unlawful conversion of money and certain notes growing out of a transaction occurring wholly within Dallas County, had wholly between the Bank and defendant Myrick, involving the negotiation and transfer of certain negotiable notes at a time when Myrick was lawfully vested with the title to said notes and authorized to deal with them; a second cause of action against the defendant Myrick for breach of express contract and failure to faithfully account to plaintiff for plaintiff's share of the proceeds of their joint enterprise; and a third cause of action based upon trespass to try title against defendant Stanton for purchasing certain lands while charged with notice of the contract between Myrick and plaintiff in regard to the title to said lands; that said causes of action were not joint and the defendant Bank was not a necessary party to the proceedings in Lubbock County.

"The plaintiff's cause of action, as set out in his petition, is a suit, first as against Wolffarth, his alleged partner, in the matters and things involved in the suit, and he, Wolffarth, is made a party defendant because it is alleged he refused to join in the suit against Myrick, Stanton and the Bank. The controverting affidavit by plaintiff alleges substantially that plaintiff and defendant Wolffarth were the owners of certain vendor's lien notes, describing them, aggregating a sum in excess of $20,000.00; that plaintiff and Wolffarth negotiated a loan with the defendant Myrick in the sum of $11,531.23, and placed the $20,000.00 vendor's lien notes with Myrick as collateral security for said loan; that Myrick, at the time of placing of the vendor's lien notes as collateral, had the right to collect sufficient money therefrom to pay off the $11,531.23 indebtedness to him, and the balance in vendor's lien notes was to be transferred and surrendered back to plaintiff and Wolffarth; that Myrick put the $11,531.23 note, together with the collateral notes pledged, and pledged them and each of them with the defendant, First National Bank in Dallas, to secure an indebtedness due and owing by Myrick to said Bank. That the said Bank is and has been at all times since in possession of said notes and said Bank, at the time of the placing of said notes with it by Myrick, had both actual and constructive notice that said notes belonged to the plaintiff and Wolffarth and had knowledge that same were placed and pledged with the defendant Myrick as collateral security to his, Myrick's debt. That Myrick, with the knowledge and consent of the Bank, collected notes in excess of $16,000.00; that the notes held by the Bank have never been credited with any sums paid to defendant Myrick and the Bank; that the Bank had knowledge of all of the collections made by Myrick, but had negligently failed to make any credits on said $11,531.23 note, or said collateral notes, and failed and refused, and still fails and refuses, to deliver the same or any part of said notes to plaintiff or defendant Wolffarth. Plaintiff further in said controverting plea alleged that the Bank and Myrick should be required to account to him for such sums collected on the collateral notes, both principal and interest, and to account...