First Nat. Bank v. Lee County Cotton Oil Co.
| Decision Date | 27 June 1925 |
| Docket Number | (No. 484-3966.) |
| Citation | 274 S.W. 127 |
| Parties | FIRST NAT. BANK OF GIDDINGS v. LEE COUNTY COTTON OIL CO. et al. |
| Court | Texas Supreme Court |
Action by the First National Bank of Giddings against the Lee County Cotton Oil Company and others. From a judgment of the Court of Civil Appeals (250 S. W. 313), affirming a judgment sustaining a general demurrer to the petition, plaintiff brings error. Affirmed.
Watson & Simmang, of Giddings, for plaintiff in error.
F. W. Moore and Geo. Shelley, both of Austin, and Bowers & Bowers, of Caldwell, for defendants in error.
This case involves the legal sufficiency of the plaintiff in error's petition, tested by general demurrer, which the trial court sustained, and whose judgment was affirmed by the Court of Civil Appeals. 250 S. W. 313. The trial court, as well as the Court of Civil Appeals, reached the conclusion that the petition failed to allege facts sufficient to properly fix the liability of the drawers and indorsers of certain drafts and bills of exchange, the basis of the plaintiff in error's suit. The petition is quite lengthy, but it may be briefly summarized to be a suit by the plaintiff in error against the Lee County Cotton Oil Company, a private corporation, the Southern Cotton Seed Company, a partnership composed of Oscar Robinson and others, whose names were unknown, the Caldwell Oil Mill Company, a private corporation, the Giddings Cotton Oil Company, a private corporation, Gerhard Zoch, Zwerneman & Schkade, a partnership composed of A. A. Zwerneman and C. H. Schkade, Fritz Miman, P. S. Grogan, L. C. Smith, and William Wenke. There was an application, also, to the place the defendant in error Lee County Cotton Oil Company in the hands of a receiver, which was granted. Judgment was rendered by default in favor of plaintiff in error against P. S. Grogan, Giddings Oil Company, and Zwerneman & Schkade, and these parties pass out of the case and will not be hereafter mentioned. The defendants in error Miman and L. C. Smith were dismissed, and likewise they will not hereafter be mentioned.
Upon a trial, after certain pleas of privilege presented by defendants in error Wenke and Robinson had been overruled, as well as pleas of misjoinder of parties and causes of action by the same parties, which action of the court is not in a condition to be reviewed by us, then came on to be heard the general demurrers, separately presented, of the last-named defendants in error and the Caldwell Oil Mill Company and Gerhard Zoch, which were sustained, and, the plaintiff in error having failed and refused to amend, the case was dismissed against these parties, and judgment rendered accordingly, together with the dismissal of the receivership proceedings against the defendant in error Lee County Cotton Oil Company.
The count against William Wenke in the petition alleges that on the 15th day of February, 1921, William Wenke executed a bill of exchange payable to the order of the Winchester State Bank on the Lee County Cotton Oil Company for the sum of $526, with exchange, payable 90 days after sight, which was duly accepted on the 17th day of February, 1921, by the Lee County Cotton Oil Company, which was paid by the plaintiff in error, the holder and owner of it in due course, whereby William Wenke, as drawer of the bill of exchange, and the Lee County Cotton Oil Company, as acceptor, became liable and bound to pay the plaintiff in error the sum of money therein specified, with exchange. This bill of exchange was set out in the petition. It is further alleged that the Lee County Cotton Oil Company was unable to pay its debts in due course, but it had certain property subject to execution, the value of which could not be realized, so as to protect all the creditors, on account of financial stringency then alleged to be existing, and it also alleged gross mismanagement on the part of the Lee County Cotton Oil Company. The petition contained this general allegation:
"That said notes, and each of them, together with each of the above-described drafts and bills of exchange, are now past due and wholly unpaid, and the defendants and each and all of them, tho often requested, have hitherto failed and refused, and still refuse, to pay the same, or any part thereof, to the plaintiff's damage in the sum of twenty-five thousand dollars ($25,000.00)."
The above quotation from the plaintiff in error's petition is at the end of the twenty-second paragraph, and is then followed by paragraphs 23, 24, 25, 26, and 27, which relate exclusively to the receivership.
The counts against the defendant in error Oscar Robinson (also sued as the Southern Cotton Seed Company) are numbered in the plaintiff's petition 4, 5, 6, 7, 8, 9, and 10. Each count represents a separate transaction, in each of which it is alleged in substance that on a certain day the defendant in error Southern Cotton Seed Company, acting by and through Oscar Robinson, made its certain bill of exchange, payable to the Southern Cotton Seed Company, and drawn on the Lee County Cotton Oil Company, for a certain sum of money, with exchange, payable 90 days after sight, each of which was duly accepted by the Lee County Cotton Oil Company, and in due course was paid by the plaintiff, who was alleged to be the owner, whereby the Southern Cotton Seed Company, as maker, and the Lee County Cotton Oil Company, as acceptor, became liable to plaintiff to pay each of said sums of money in each of said bills of exchange specified, none of which had been paid, and on each of which was indorsed, "Southern Cotton Seed Company, by Oscar Robinson, Mgr." We here copy one of these instruments, all being of similar character, but of different dates and different amounts, to wit:
Each of these bills was also alleged to have been duly accepted by the Lee County Cotton Oil Company by indorsing across the face of same the following:
The counts against the defendant in error the Caldwell Oil Mill Company are numbered in the plaintiff's petition in paragraphs 11, 12, 14, and 15, in which it is alleged that the defendant in error Caldwell Oil Mill Company, acting through its manager, H. W. Bates, made its certain bill of exchange payable to the order of the Caldwell Oil Mill Company and drawn on the defendant in error Lee County Cotton Oil Company for a certain sum of money, with exchange, payable 90 days after sight, which was regularly accepted by the Lee County Cotton Oil Company in due course of business, and paid by the plaintiff in error, which was alleged to be the owner of the same, whereby the Caldwell Oil Mill Company, as maker, and the Lee County Cotton Oil Company, as acceptor of same, became liable and bound to pay plaintiff in error the sum of money in said bill of exchange specified, together with exchange, no part of which had been paid. We copy one of these instruments to illustrate the character thereof, to wit:
This bill of exchange is alleged to have been indorsed by the Caldwell Oil Mill Company, by H. W. Bates, Manager, and also indorsed across the face of the same was the following:
The petition against the defendant in error Zoch is in two counts, numbered 16 and 17, in the first of which it is alleged that the defendant in error Zoch made a certain bill of exchange, payable to the order of the Citizens' State Bank of Giddings on the Lee County Cotton Oil Company for the sum of $429.38, with exchange, payable 90 days after sight, which was duly accepted by the Lee County Cotton Oil Company in due course of business and paid by the plaintiff in error, who is alleged to have been the owner and holder, while the next count contains similar allegations, with different dates and amounts, the amount being $469.70, one of which is in the following language and the other being similar, to wit:
"Citizens' State Bank of Giddings,
"Giddings, Texas, February 26, 1921.
"At ninety days after sight pay to the order
of Citizens' State Bank, Giddings, Texas four
hundred twenty-nine and 38/100, with exchange,
value received, and charge to the account
of [Signed] Gerhard Zoch.
"To Lee County Cotton Oil Company,
"Giddings, Texas."
It is alleged that the suit was filed before the first term of the district court of Lee county after dishonor of each of said bills of exchange by nonpayment, but the petition did not allege that notice of dishonor had been given the drawers and indorsers in the manner and within the time as required by articles 6001a101-6001a104 (sections 101-104 of the Negotiable Instruments Act), Complete Texas Statutes 1920, or Vernon's Ann. Civ. St. Supp. 1922, arts. 6001—101 to 6001— 104, to fix their liability on the drafts sued on.
The trial judge, in sustaining the general demurrer to appellant's petition, held that the Uniform Negotiable Instruments Act of 1919, by article 7, §§ 89-118, both inclusive, Acts 36th Legislature, pp. 200, 203 (Vernon's Ann. Civ. St. Supp. 1922, arts. 6001—89 to 6001—118), repealed article...
To continue reading
Request your trial
-
McInnis v. State
...Motor Inv. Co. v. City of Hamlin, supra ; Bank of Atlanta v. Fretz, 148 Tex. 551, 226 S.W.2d 843 (1950); First Nat. Bank v. Lee County Cotton Oil Co., 274 S.W. 127 (Tex.Comm'n App.1925); State v. Houston Oil Co. of Texas, 194 S.W. 422 (Tex.Civ.App.1917, writ ref'd); Meek v. Wheeler County, ......
-
Ladd v. Anderson
...46 N.E. 103, 57 Am.St.Rep. 479; Worley v. Johnson, 60 Fla. 294, 53 So. 543, 33 L. R.A.(N.S.) 639. In the case of First National Bank v. Lee County Cotton Oil Co., 274 S.W. 127, the Commission of Appeals holds that the Negotiable Instruments Law of Texas now controls, with respect to the man......
-
State ex rel. Chandler v. Dancer
...Hamlin, 1944, 142 Tex. 486, 179 S.W.2d 278; Bank of Atlanta v. Fretz, 1950, 148 Tex. 551, 226 S.W.2d 843; First Nat. Bank v. Lee County Cotton Oil Co., Tex.Com.App.1925, 274 S.W. 127; State v. Houston Oil Co. of Texas, Tex.Civ.App.1917, 194 S.W. 422, writ ref.; Meek v. Wheeler County, Tex.C......
-
United States v. Minker
...v. Cheetham, 17 Wash. 626, 50 P. 522; Indianapolis Union R. Co. v. Waddington, 168 Ind. 448, 82 N.E. 1030; First Nat. Bank v. Lee County Oil Co. (Tex.Com.App.) 274 S.W. 127; Sutherland on Stat.Const. §§ 218, 242; 59 C.J. 900, 1102; Ex parte Public Nat. Bank, 278 U.S. 101, 104, 49 S. Ct. 43,......