First Nat. Bank v. First State Bank

• Decision Date: 02 June 1923
• Docket Number: (No. 8847.)
• Citation: 252 S.W. 1089
• Parties: FIRST NAT. BANK OF GREENVILLE v. FIRST STATE BANK OF CAMPBELL.
• Court: Texas Court of Appeals

252 S.W. 1089

FIRST NAT. BANK OF GREENVILLE v. FIRST STATE BANK OF CAMPBELL.

(No. 8847.)

Court of Civil Appeals of Texas. Dallas.

June 2, 1923.

Appeal from Hunt County Court; Olin F. McWhirter, Judge.

Action by the First State Bank of Campbell against the First National Bank of Greenville. Judgment for plaintiff, and defendant appeals. Affirmed.

Neyland & Neyland, of Greenville, for appellant.

Clark & Sweeton, of Greenville, for appellee.

HAMILTON, J.

We make the following finding of facts: On or about December 14, 1921, J. M. Gilbreath was indebted to appellee in the sum of $1,435. The indebtedness was evidenced by a promissory note then past due. Gilbreath had executed to appellee a chattel mortgage to secure the indebtedness, mortgaging certain live stock and farming implements and "all crops for 1921." Gilbreath who was a farmer in Hunt county, Tex., during the year 1921 produced 11 bales of cotton, which were put in the cotton yard at Campbell, Hunt county, Tex., and the cotton yard tickets were delivered to appellee. The mortgage contained no description of crops beyond that above quoted, but the proof shows without any contradiction that the mortgage was intended, both by Gilbreath and the appellee bank, as a mortgage on all crops raised by Gilbreath upon his premises in Hunt county. Mutually between them the mortgage was recognized and treated as a valid one. The delivery of the cotton yard tickets was made to the Campbell bank by Gilbreath as symbolical delivery of the cotton to appellee to be sold for the purpose of applying the proceeds upon the debt.

About December 12, 1921, it was decided and agreed between the bank and Gilbreath that the cotton should be sold and the money obtained for it applied upon the note. The appellee bank suggested to Gilbreath that if he himself would haul the cotton to Greenville and sell it there, where a better market than that at Campbell existed, he could thereby "make wages" by obtaining the benefits of making delivery and sale in Greenville. It having been understood between Gilbreath and a representative of the bank that on December 13 he should load the cotton on his wagons and transport it to Greenville and sell it, the tickets were delivered to Gilbreath by the bank for the purpose of making sale of the cotton in Greenville and turning over to appellee the proceeds of the sale to be credited on the debt. The cotton tickets were delivered to Gilbreath solely for this purpose, and he made the sale on the 13th day of December, 1921, depositing the check he received for the cotton in the First National Bank of Greenville. At the time the deposit was made Gilbreath was indebted to the First National Bank of Greenville upon a promissory note for $854, which was also past due. Gilbreath was not a customer of the First National Bank of Greenville, and his only reason for depositing the money in that bank was that he might leave it there to be checked out to appellee bank the next day. At the time the deposit was made, Gilbreath, according to his testimony, informed the First National Bank that the money being deposited belonged to the Campbell State Bank, although the deposit was made in Gilbreath's name; the check having been made to him by the purchaser.

He returned to Campbell and, on the morning of December 14, 1921, went to the First State Bank of Campbell, exhibited the deposit slip given him by the First National Bank of Greenville, and executed to appellee a check for the amount of the deposit. Appellant declined to honor the check, claiming that the deposit made by Gilbreath had been applied and credited upon the note held by appellant against Gilbreath. The note held...