Guaranty State Bank v. Beard

• Citation: 18 S.W.2d 679
• Decision Date: 30 April 1929
• Docket Number: (No. 10414.)
• Parties: GUARANTY STATE BANK OF HUTCHINS v. BEARD.
• Court: Texas Court of Appeals

18 S.W.2d 679

GUARANTY STATE BANK OF HUTCHINS v. BEARD.

(No. 10414.)

Court of Civil Appeals of Texas. Dallas.

April 30, 1929.

Rehearing Denied June 1, 1929.

Appeal from District Court, Dallas County; R. T. Brown, Judge.

Action by W. C. Beard against the Guaranty State Bank of Hutchins. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Holland, Bartlett, Thornton & Chilton, of Dallas, for appellant.

House & Wilson, of Dallas, for appellee.

LOONEY, J.

W. C. Beard sued Guaranty State Bank of Hutchins (now Hutchins State Bank), and alleged substantially that on February 14, 1924, he deposited with defendant the sum of $734, and on January 22, 1924, $1,000, but that defendant gave him credit for only $250 of the first amount deposited, and only $100 of the second amount, leaving the sum of $1,384 uncredited; that during the years 1924 and 1925 defendant wrongfully charged plaintiff's account with various items, a list of which is set out in plaintiff's trial amendment, aggregating the sum of $2,303.99, making a total claim of $3,687.99, for which he sought judgment. The case was submitted to a jury, and, as their answers to special issues were altogether favorable to plaintiff, the court rendered judgment in his favor for the amount claimed, from which defendant bank has appealed.

As the case will be reversed and remanded, we will not indicate our opinion in regard to the value of the evidence, except in so far as may be necessary to illustrate our holdings. In submitting issues as to the alleged unauthorized items charged by the bank against the account of plaintiff, the court employed substantially this form: "Did plaintiff [stating the date involved] authorize defendant bank to charge [describing the item] against his account?" The bank objected, and has assigned error, as to each submission, on the ground that the court failed to tell the jury what would constitute authority; that is, failed to define the word "authorize," as used in the charge.

The rule is now well settled that a timely objection to a charge, defective in failing to give proper explanations and definitions of legal terms, as required by article 2189, R. S. 1925, is a sufficient basis for an assignment, and that a litigant is not required to follow up the objection by requesting the submission of a proper charge curing the defect. See Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570; Texas Pacific Coal & Oil Co. v. Stuard (Tex. Civ. App., on rehearing) 7 S.W.(2d) 878-882. However, we do not deem it necessary to determine the validity of this objection to the court's charge, for the reason that, if error, it was invited by defendant, in that, in its requested issue No. 5, the identical term used by the court was employed; hence it is estopped now to say that the court erred in using the very language in which its requested charge was couched. See St. Louis, etc., R. Co. v. Knight, 20 Tex. Civ. App. 477, 49 S. W. 250; Gulf, C. & S. F. R. Co. v. Williams (Tex. Civ. App.) 290 S. W. 846-848.

The record discloses that a negro, Dan Butler, was plaintiff's tenant during the years 1924 and 1925, and that plaintiff loaned him money with which to crop; that notes were taken by plaintiff, evidencing the different advances, and these were left by plaintiff with defendant bank for collection. The evidence clearly indicates that at the time plaintiff took the notes he delivered neither cash nor checks to Butler, but that it was understood the money borrowed would be advanced by the bank to Butler, when and as requested, and charged to plaintiff's account. A number of the items challenged by plaintiff were for money the bank paid Butler.

In submitting the issues in regard to the Dan Butler items, the court charged, with reference to each, as follows: "Did plaintiff [giving the date] authorize the bank to charge [describing the item] against his account?" In this status of the record, defendant requested, and the court refused to give, the following: "Did plaintiff intend, at the time he left Dan Butler's notes with the bank, that the amount of the notes should be advanced to Butler by the bank?"

We think the court erred in refusing to give the special charge. It may be true, and the jury was authorized to so find under the charge, that plaintiff neither signed nor specifically authorized the drawing of the Butler checks; yet the evidence clearly presented the issue that, when plaintiff made the different advances of money and took Butler's notes, he neither delivered cash nor issued checks, but left the notes with the bank for collection, intending that the bank should pay Butler the money as and when needed by him. Defendant was entitled to have this theory passed upon by the jury. The purpose of an...