Harper v. Winfield State Bank
| Decision Date | 21 January 1915 |
| Docket Number | (No. 1392.) |
| Parties | HARPER v. WINFIELD STATE BANK et al. |
| Court | Texas Court of Appeals |
Appeal from Titus County Court; Sam Porter, Judge.
Action by the Winfield State Bank against Walter Harper and others. Judgment for plaintiff, and defendant Harper appeals. Affirmed.
The suit was by the appellee bank to recover $114.55 as due against the maker, indorser of, and drawee of the following draft:
The maker of the draft, Walter Harper, interposed a plea of privilege to be sued in Hopkins county, which was overruled by the court. Judgment was entered by the court in favor of the bank against the maker and indorser, but in favor of the drawee. The maker of the draft appeals.
The material facts are that Walter Harper was a cotton buyer, and had contracted to sell Felix Nelson 250 bales of cotton at an agreed price, basis middling, grades and weights guaranteed, and had delivered on his contract 225 bales of cotton. On October 29, 1913, Walter Harper went from Mt. Pleasant to Winfield, and there bought, at an agreed price, from Miller & Tabb, a copartnership, 15 bales of cotton, and from W. T. Cameron 10 other bales of cotton. These 25 bales of cotton made the exact amount necessary to fill the contract with Nelson. After purchasing the cotton, Walter Harper at once personally graded same. It was then delivered to the Cotton Belt Railway Company at Winfield for shipment to Sulphur Springs. The bill of lading was issued in the name of Miller & Tabb for the 15 bales, and in the name of W. T. Cameron for the 10 bales, consigned to shipper's order, notify Felix Nelson, Sulphur Springs, Tex. Walter Harper then drew two drafts for the respective amounts; the one involved in this suit being set out above. It appears that Miller & Tabb were indebted to the Winfield Bank for money advanced by it to them for the purpose of paying, in the first instance, for the cotton; and they had the draft made payable to the bank, in payment of the money due. Miller & Tabb assigned the bill of lading and delivered the draft to the bank, and the bank on the same date credited the amount of the draft to the overdrawn account of Miller & Tabb. The draft and the bill of lading were then forwarded by the bank, in due course of business, to the First National Bank of Sulphur Springs, and payment thereof by Felix Nelson, the drawee in the draft, was refused, whereupon the draft was protested, and the fees of protest paid by the bank at Winfield. Felix Nelson claimed the right to refuse to pay the draft or receive any more cotton until alleged losses in weight on the 225 bales previously delivered had been adjusted by Walter Harper. After being notified of the draft's being dishonored, Walter Harper asked the Winfield Bank to hold it until a certain date and then return to same bank for payment. The Winfield Bank then asked Miller & Tabb to indorse the draft, which they agreed to do and did do. At the date specified by Harper, the Winfield Bank returned the draft to the bank at Sulphur Springs. Payment was again refused by Nelson, and the draft was returned to the Winfield Bank. The cashier of the Winfield Bank and Miller & Tabb and W. T. Cameron then agreed that W. T. Cameron should sell the cotton, which was at Sulphur Springs. The 15 bales of cotton were sold by Cameron at the market price, which was $110.55 less than the amount of the draft. The difference was due to decline in market price. The proceeds of the sale were applied by the bank as a credit on the draft. It was proved that Miller & Tabb and the Winfield Bank were residents of precinct No. 8 in Titus county, and Walter Harper was a resident of precinct No. 1 in Hopkins county.
Rolston & Rolston, of Mt. Pleasant, for app...
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