Foy v. East Dallas Bank

• Decision Date: 04 October 1894
• Parties: FOY v. EAST DALLAS BANK et al.
• Court: Texas Court of Appeals

28 S.W. 137

FOY v. EAST DALLAS BANK et al.

Court of Civil Appeals of Texas.

October 34, 1894.

Appeal from district court, Dallas county; Charles Fred Tucker, Judge.

Action by C. H. Foy against the East Dallas Bank and others to recover the amount of certain collections. Judgment in part for plaintiff, and he appeals. Reformed and affirmed.

The following statement by appellant's counsel is concurred in by appellees, and is adopted: "Two suits in the district court of Dallas county were consolidated; the first being cause No. 7,115, in which the appellee the Robards-Kitchell Tobacco Manufacturing Company, as plaintiff, sought to recover of the appellee the East Dallas Bank, as defendant and garnishee, moneys in its hands alleged to belong to one H. A. Blount. The second was numbered 7,231, in which the appellant, C. H. Foy, as plaintiff, sought to compel said bank to account for certain claims intrusted to it by plaintiff for collection, and to recover such moneys as had been collected, and damages for the value of uncollected claims alleged to have been lost through the negligence of defendant. Trial by jury, and a special verdict, on which the court rendered judgment for the Robards-Kitchell Company (plaintiff in 7,115) against the garnishee, for the amount of plaintiff's debt against Blount, and in favor of the appellant, Foy (plaintiff in No. 7,231), against the bank, for the balance of the moneys in its hands, less attorney's fees, but denying him a recovery of the damages claimed, and suspending executions to the amount awarded him, to await the result of another suit pending in the county court. The plaintiff Foy appeals. The facts proved on the trial, and the verdict and judgment thereon, justify the following conclusions: In the year 1888 the Dallas Grocery Company was doing business in the city of Dallas, and failed for a large sum of money. Said concern was composed of H. A. Blount; and W. S. Gillett, being one of the managers of the business for H. A. Blount, collected together, at the instance of said Blount, a large amount of the assets in the shape of money and notes, carried them to North Carolina for the purpose of placing said property beyond the reach of the creditors of said concern, and pretended to sell to appellant, C. H. Foy, who was a cousin of said W. S. Gillett, about $10,000 worth of said notes at a large discount, taking his (Foy's) note to Gillett for the same. At the time of said transaction Foy had notice of sufficient facts to put him upon notice that such transaction was fraudulent. A part of said notes were sent by said C. H. Foy to the East Dallas Bank for collection, and said W. S. Gillett had also placed with said bank some other notes belonging to said Dallas Grocery Company, or H. A. Blount. On December 12, 1888, appellee Robards-Kitchell Tobacco Manufacturing Company brought suit (No. 7,114) against the Dallas Grocery Company, and on the same day sued out a writ of garnishment against the East Dallas Bank to reach the funds in its hands, and served H. A. Blount by publication. An answer was filed by the bank, showing the amount of money in his hands, — about $532.12 to the credit of W. S. Gillett, and about $1,170.51 in money to the credit of C. H. Foy. The answer was controverted, and both funds claimed as the property of the Dallas Grocery Company (H. A. Blount), and that it had been fraudulently transferred to said Foy and Gillett to avoid the payment of the debts of said Dallas Grocery Company and H. A. Blount, who were insolvent. On February 22, 1889, C. H. Foy brought suit against the East Dallas Bank (No. 7,231) to recover said funds claimed by him, and for damages for negligence in failing to collect all the notes. The two above-named suits were consolidated by the court at the instance of the bank. On January 3, 1889, a writ of garnishment was sued out in the county court of Dallas county (cause No. 5,077), in the case of E. A. Allen & Bro. v. East Dallas Bank, wherein it was sought to hold the funds in the hands of said bank to answer a debt against H. A. Blount and W. S. Gillett for $322.57. The answer of said bank was practically the same as in this case, and was contested,...