Goree v. Uvalde Nat. Bank

• Decision Date: 21 January 1920
• Docket Number: (No. 6320.)
• Parties: GOREE v. UVALDE NAT. BANK.
• Court: Texas Court of Appeals

Page 620

218 S.W. 620

GOREE v. UVALDE NAT. BANK.

(No. 6320.)

Court of Civil Appeals of Texas. San Antonio.

January 21, 1920.

On Motion for Rehearing, February 19, 1920.

Appeal from District Court, Uvalde County; Joseph Jones, Judge.

Action by the Uvalde National Bank against Chas. E. Goree. From judgment for plaintiff, defendant appeals. Affirmed.

Ditzler H. Jones and L. Old, both of Uvalde, for appellant.

Martin & Martin, of Uvalde, for appellee.

COBBS, J.

This suit was to recover on a note against appellant for the sum of $3,038, dated November 1, 1918, payable four months after date with 10 per cent. attorney's fees. The bank went into liquidation because of insolvency caused by the alleged defalcations and embezzlements of its cashier, F. J. Rheiner. It was submitted on special issues, and the jury found in favor of appellee, and judgment entered for amount of note sued for in favor of appellant. The appellant defended by presenting general demurrer, general denial, plea of non est factum, and want of consideration.

The main issues grow out of the fact that because appellant was a customer of said bank having its domicile in Uvalde and residing in Sabinal it was inconvenient for him to arrange payments of or execute notes to protect overdrafts as they in the course of his business occurred from time to time. Therefore, at the suggestion of F. J. Rheiner, the cashier of said bank, appellant received from him a number of the blank checks of the bank with the understanding as appellant received notices of overdrafts he would sign blank note and mail to Rheiner, who was authorized for him to fill in the amount and hold in the bank until it could be arranged either by payment or renewal notes. This arrangement went along for a while, until the bank refused to carry appellant any further, and required security, which he gave, with his father, in a note for $8,946.82, which appellant claims embraces all his indebtedness to the bank at the time. At that time, appellant insisted upon a statement from the bank showing his indebtedness and the outstanding notes, which he never received to his satisfaction, nor was he shown all the notes signed by him, the amounts of which were intended to be embraced in the said big note. He never denied his signature to his notes, but denied the amount written on note sued on and also denied the authority to fill in the amount of renewal note; the authority being limited to overdrafts.

The real issue in the case was about the two notes held by the bank. One was for $2,940, and the note sued on for $3,038, the appellant denying in toto, and the appellee affirming, that the $3,038 was the renewal of the former note.

The said Rheiner having absconded, and there being a sharp issue of fact between the parties as to the validity of the note sued on, appellant sought to make proof of various false entries and forgeries in the books and accounts of other parties in no way connected with defendant's account, which the court would not permit, to which ruling of the court the appellant excepted.

The appellant's first assignment is:

"The court erred in sustaining the objections made by the plaintiff to questions seeking to elicit from the witness Jake Schwartz testimony to the effect that since the Uvalde National Bank closed, which was on January 8, 1919, that he had been working at said bank, in connection with one Smith, who was a United States Department of Justice man, an expert accountant, and that they found quite a large number of false entries and forgeries of various people, which said number of false entries and forgeries amounted to 1,018, which were placed on the books and records of the bank, but the court sustained the objections of the plaintiff that the same was irrelevant and immaterial and could serve no purpose in the case, all of which more fully appears by reference to defendant's bill of exception No. 22."

Appellant's first proposition is to the effect: In an action by and between the parties, where the act complained of is fraudulently done, it is permissible to show other similar fraudulent acts done by the party about the same time, as bearing on the question of intent with which the party did the act by which it is sought to hold the defendant liable, similar in its nature.

The bill of exception, though quite voluminous, we copy parts thereof as follows:

"That at the beginning of the trial it was agreed that, on account of the books, ledgers records, and accounts of the plaintiff bank covering so many pages and being so voluminous, the witnesses should be permitted to state in a shorthand rendition of the facts what the books showed, and that the plaintiff in the case placed as a witness in their behalf Jake Schwartz on the stand, and on cross-examination he was called on to produce the said books of the bank, together with the ledgers, accounts, records of the transaction of the said bank, of which he then and there had custody of as liquidating agent of the bank, which had closed its doors on January 8, 1919, and was called on to exhibit the said books, etc., all of which said request the said witness complied with, for the purpose of showing forgeries and false entries thereon made by F. J. Rheiner during the time that he was cashier of the plaintiff bank, and particularly during the time covering the years of 1917 and 1918, with reference to the accounts of others than that of the defendant C. E. Goree.

"By the said witness of the plaintiff the defendant would, after having gone through defendant's account fully, and having gone over and through the said books, etc., in the presence of the jury, and the said plaintiff's witness Jake Schwartz would have pointed out and have shown the jury on the said books, etc., false entries and forgeries in the accounts of other parties, in no way connected with the defendant's account, to the number of 1,018, practically all of which, about 900, would have been shown by and appeared on said books to have been made during the latter part of the year of 1917, and down to the 31st day of December, 1918, which said false entries as shown would have been false and fraudulent entries in the accounts of W. B. Patterson, J. N. Garner, Ford Moore, Ben Moore, John Laxson, John Turman, Pete Walcott, A. M. Sanders, T. J. Martin, H. G. Martin, Daniel Holmes, G. R. Patterson, W. W. Petraeus, Margie Petraeus, Mrs. J. F. Ward, G. N. Gibbons, O. C. Davenport, John Gibbens, Gibbens & Davenport, Sam Blalock and approximately 50 others, who were patrons of the bank during the said period, and who had accounts with the said bank, and that the said books, papers, records, etc., would have shown forgeries committed by said F. J. Rheiner, while in position of cashier of said bank, during said period, by signing notes payable to said bank, and checks thereon, by falsely and fraudulently and without authority signing the names of Ford Moore, John Laxson, T. J. Martin, W. B. Patterson, Gibbens & Davenport, G. N. Gibbens, M. M. McFarland and about 25 other patrons of the said bank during the said period, and upon the court sustaining the said objections of the plaintiff thereto, the defendant then excepted and offered to pursue the inquiry further by cross-examination of the said witness Jake Schwartz, and, if permitted, would have shown and proven by the said Jake Schwartz and he would have testified that when the bank closed, which was January 8, 1919, he was appointed by the proper authorities to the position of liquidating agent of the said bank, and that day he went into immediate possession and control of the books of the said bank, and that he had had eight years' experience in bookkeeping, and is an expert accountant and bookkeeper, and that in a week after he took charge the United States Banking Department sent an expert accountant and auditor, to wit, W. J. Smith, to examine said books, records, etc., of said bank with the assistance of said witness Jake Schwartz, for the purpose of ascertaining and ferreting out what false entries and forgeries had been made on the books, records, papers, etc. of said bank, and that he, the said Jake Schwartz, and the said expert accountant, did make a thorough examination and auditing of said books, records, papers, etc., of said bank, and that they found 1,018 false and fraudulent forgeries and entries on such books, records, etc., of said bank made by the said F. J. Rheiner during the time that he was cashier thereof, and of which about 900 were made by him in the latter part of 1917 and the year 1918, down to December 31, 1918, on the accounts of the same persons and patrons above named of the said bank, and approximately 50 others, and that they found forgeries of the names of the persons above mentioned, and approximately 25 others. But on the objections above stated all of the said testimony was excluded, and the court announced that he would not permit any evidence of any other false entry, forgery or other act of the said F. J. Rheiner to be introduced in evidence other than those relating to the defendant's account."

It was shown by Jake Schwartz, a witness for appellee and in charge of liquidating the bank, that the original entry of $2,940 note was the only one that appeared on the account of appellant on the liability ledger that was in the handwriting of the cashier, F. J. Rheiner, the balance of them being in the handwriting of the bookkeepers, Nunn and Kelso.

The statement of the list of all notes which appellant owed the bank, rendered him July, 1918, by Rheiner in Rheiner's handwriting, did not contain the item of note for $2,940, though purported to be dated November, 1917, and past due July, 1918, at time list was made.

The note for $8,946.82, dated October 2, 1918, signed by his father, was contemplated to embrace all past-due notes, but it seems the list did not include the note dated in November, 1917, maturing July, 1918, for $2,940, the disputed note.

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