Hoffer v. Eastland Nat. Bank, 2162.

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Hoffer v. Eastland Nat. Bank, 153 S.W.2d 345 (Tex. App. 1941)
• Decision Date: 20 June 1941
• Docket Number: No. 2162.,2162.
• Parties: HOFFER v. EASTLAND NAT. BANK.

153 S.W.2d 345

HOFFER v. EASTLAND NAT. BANK.

No. 2162.

Court of Civil Appeals of Texas. Eastland.

June 20, 1941.

Rehearing Denied July 15, 1941.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Suit by the Eastland National Bank of Eastland, Texas, against T. B. Hoffer and Arnold Kirk to recover on a draft, wherein the first named defendant filed a plea of privilege. From a judgment overruling the plea of privilege, the first named defendant appeals.

Judgment affirmed.

Strickland, Ewers & Wilkins, of Mission, and Turner, Seaberry & Springer, of Eastland, for appellant.

Milburn McCarty, of Eastland, for appellee.

LESLIE, Chief Justice.

This is an appeal from an order overruling a plea of privilege. The appellee, Eastland National Bank, a corporation, sued T. B. Hoffer, a resident of Hidalgo County, and Arnold Kirk, a resident of Eastland County, as drawee and drawer, respectively, of a draft for $600. Appellant Hoffer pleaded his privilege to be sued in Hidalgo County. The bank controverted such plea, relying on subdivisions 4 and 29a, Art. 1995, Revised Statutes of 1925, Vernon's Ann.Civ.St. art. 1995, subds. 4, 29a.

More specifically, the bank alleged in its petition, made a part of its controverting affidavit, that on or about June 26, 1940, said Kirk presented to Albert Taylor, active vice president of said bank, a telegram bearing date June 26, 1940, addressed to said Arnold Kirk, and signed by the defendant T. B. Hoffer, said telegram directing and authorizing the defendant Kirk to draw a draft on the defendant Hoffer through the First State Bank & Trust Company, Mission, Texas, for the sum of $600; that said telegram is to the tenor following:

"DAJ22-14-
                Corpus Christi Tex 1042AM June 26 1940
                Arnold Kirk
                Eastland Tex
                

Draw draft six hundred dollars through First State Bank and Trust Company Mission Tex

T B Hoffer."

The bank further alleged that the defendant Kirk stated to said Taylor that said Hoffer was indebted to him in excess of the sum of $600; that he had just talked with Hoffer over the telephone and told him he needed $600 and asked said Hoffer to let him have that amount at that time, and that he had requested said Hoffer to send him a telegram directing and authorizing him to draw a draft on him for said amount so that he, Kirk, could take the draft to the bank and secure said sum of money; that such statements so made by the defendant Kirk to said Albert Taylor were true, and that immediately after said telephone conversation the defendant Hoffer sent and authorized the sending of said telegram to said Arnold Kirk in keeping with his promise to do so; that said Taylor, as an officer of said bank, was acquainted with the financial responsibility of the defendant Kirk and defendant Hoffer; that he would not have advanced said $600 to the defendant Kirk without full security for such loan, but that he knew the defendant T. B. Hoffer was financially responsible and able to pay said sum of money; that the defendant Kirk knew he, Taylor, would not let him have that amount of money on his individual credit without good security for the same, and that he, Kirk, had reason to believe, and did believe, that said Taylor would advance to him said sum of money upon presentation of said telegram and the drawing of a draft for said amount, as authorized by said Hoffer.

The plaintiff further alleged that said telegram constituted a promise and undertaking upon the part of the defendant Hoffer to honor and pay said draft so drawn by said Kirk as directed in the telegram and that said Taylor, believing and relying upon the promises and undertaking of the defendant Hoffer, agreed to advance said sum of $600 upon the presentation of the draft so authorized by said telegram. That upon such understanding said Kirk...