Hoskins v. Velasco Nat. Bank

• Court: Texas Court of Appeals
• Writing for the Court: McMeans
• Citation: Hoskins v. Velasco Nat. Bank, 107 S.W. 598, 48 Tex.Civ.App. 246 (Tex. App. 1907)
• Decision Date: 16 December 1907
• Parties: HOSKINS et al. v. VELASCO NAT. BANK et al.

107 S.W. 598

HOSKINS et al. v. VELASCO NAT. BANK et al.

Court of Civil Appeals of Texas.

December 16, 1907.

Rehearing Denied January 23, 1908.

Appeal from Harris County Court; A. E. Amerman, Judge.

Action by the Velasco National Bank and others against W. W. Hoskins and others to recover money which plaintiffs were compelled to pay a depositor by reason of the defendants' failure to perform an agreement entered into with plaintiff, that they would assume the debts of the bank due its depositors. From a judgment for plaintiffs, defendants appeal. Affirmed in part, and reversed in part.

Maco & Minor Stewart and James B. & Charles J. Stubbs, for appellants. Bryan & McRae, for appellees.

McMEANS, J.

The Velasco National Bank and all its stockholders, A. E. Toebelman, Lewis R. Bryan, A. Blum, M. Lasker, C. F. Hellmuth, Mrs. Janet Miller, F. B. Chilton, Sol Tem, Mrs. A. Bowers, joined by her husband, Albert Bowers, sue W. W. Hoskins, V. E. Hoskins, and S. H. Hudgins, alleging that: "On the 1st day of March, 1904, when the said Velasco National Bank was placed in voluntary liquidation by the stockholders thereof, it was proposed to the said stockholders of the Velasco National Bank by the said W. W. Hoskins, V. E. Hoskins, and S. H. Hudgins that they, the said Hoskins and Hudgins, had formed a private banking firm, known as the `Bank of Velasco,' for the purpose of succeeding to the business of the said Velasco National Bank, and that, if the stockholders of the said Velasco National Bank would turn over its assets and business to the Bank of Velasco, the latter bank would assume the obligation of said Velasco National Bank, and pay same to depositors and other creditors, and would collect and distribute said assets to the said stockholders of said National Bank without charge therefor to said stockholders. * * *" That, in accordance with resolutions passed, "the stockholders of said bank on March 1, 1904, did turn over and deliver into the possession of said W. W. Hoskins, V. E. Hoskins, and S. H. Hudgins, composing the firm of the Bank of Velasco, all of the assets, money, property, and business of the Velasco National Bank, * * * to be collected and converted into money and the debts of said Velasco National Bank paid and the balance distributed to the shareholders in said Velasco National Bank. * * * That, by reason of the premises, the said W. W. Hoskins, V. E. Hoskins, and S. H. Hudgins became liable to and promised the said Velasco National Bank and other plaintiffs, and each and every stockholder of said bank, to pay each and every depositor and other creditor of said bank. * * * These plaintiffs further say that the said bank of Velasco and the said W. W. Hoskins, V. E. Hoskins, and S. Hudgins, composing said firm, became trustees and agents for these plaintiffs for the prompt collection and proper disposition and distribution of the assets and property of said Velasco National Bank, and the said Hoskins and Hudgins aforesaid, for a valuable consideration to them moving from the said Velasco National Bank and the stockholders thereof, to act for and to become trustees and agents for said bank and the stockholders in said Velasco National Bank," etc. Plaintiffs further say that the said Bank of Velasco and the said W. W. Hoskins, V. E. Hoskins, and S. H. Hudgins, composing said firm, became trustees and agents for these plaintiffs and the other stockholders in the Velasco National Bank and for said Velasco National Bank, for the prompt collection of and proper disposition and distribution of the assets and property of said Velasco National Bank, and the said Hoskins and Hudgins undertook, for a valuable consideration, to act for and become trustees and agents of said bank and the stockholders in said Velasco National Bank for the purpose aforesaid; that one Fred Bagby was at the time a depositor in said Velasco National Bank and a creditor to the extent of $499; that he brought suit and recovered judgment against the Velasco National Bank for the sum of $499, with six per cent. interest thereon from November 29, 1905, together with costs, which the Velasco National Bank has paid. Defendant W. W. Hoskins answered by plea in abatement of plaintiffs' cause, setting up his discharge in bankruptcy, attaching to his said answer the orders and decrees showing the proceedings in bankruptcy and his discharge as a bankrupt in the United States District Court for the Southern District of Texas, at Galveston; by general demurrer and general denial; by answer setting up his adjudication and discharge in bankruptcy. Plaintiffs filed supplemental petition, alleging that the answer of W. W. Hoskins, in so far as same pleads a discharge of said Hoskins in bankruptcy from indebtedness sued on herein by plaintiffs, and especially by the plaintiff Velasco National Bank, shows no discharge from the indebtedness sued on in this cause; by general denial of all allegations in answer of said W. W. Hoskins; and that, as alleged in the original petition, the defendant W. W. Hoskins was the cashier and one of the directors of the plaintiff Velasco National Bank on March 1, 1904, when said bank went into liquidation; and that said defendant Hoskins, when he filed his petition in bankruptcy on April 18, 1905, did not schedule the indebtedness sued on herein in the name of the Velasco National Bank or of any of the individual plaintiffs, but that same was entered on the said schedule in the name of Fred Bagby.

Plaintiff averred that the said defendant W. W. Hoskins is not discharged from his liability to the plaintiff, the Velasco National Bank, nor to the individual stockholders thereof who are plaintiffs herein, for the following reasons: "That, as is alleged in plaintiffs' original petition filed herein at the time the Velasco National Bank was liquidated, this defendant, W. W. Hoskins, together with his codefendants, represented to these plaintiffs that they, the three defendants herein, had formed a partnership known as the Bank of Velasco, and that they contemplated and would do a private banking business under said name, and that now and since said time the said defendant, and his two codefendants, Hudgins and Hoskins, are claiming now and have claimed that they did not form any such partnership, and these plaintiffs now say that if it be found as a fact upon the trial of this case that no such firm as the Bank of Velasco was formed by the three defendants herein, and if no banking business was conducted or done by said three defendants under the name of Bank of Velasco, then and in that event these defendants, and especially this defendant W. W. Hoskins, acquired possession of the property of plaintiff, the Velasco National Bank and these stockholders, by false pretense and false representations, and that the money and assets and property of the said Velasco National Bank would not have been delivered over and given into the possession of the said defendants, or either of them, had such representations not been made." That said indebtedness herein sued on never was scheduled by said W. W. Hoskins in bankruptcy in the name of either the Velasco Bank or in the name of one or all of the plaintiffs, who are stockholders of said bank, but that the indebtedness was scheduled in the name of Fred Bagby. That Bagby was never a creditor of said Hoskins or the Bank of Velasco, but was a creditor of the Velasco National Bank. That plaintiff had no knowledge of the fact that said Bagby had refused to transfer his account from the Velasco National Bank to the Bank of Velasco until the suit was brought against said Velasco National Bank by said Bagby. That the judgment rendered in said suit of Bagby v. Velasco National Bank was paid by said Bank on April 24, 1906, and assignment thereof taken in name of L. R. Bryan as trustee. That the money so paid Bagby was out of the assets of the said Velasco National Bank in the hands of said Bryan. That they had no knowledge of the facts concerning the claim of said Bagby until the determination of the said suit of Bagby v. Velasco National Bank, and therefore plaintiffs, or either of them, would not be in any position to prove any claim in bankruptcy against the defendant W. W. Hoskins. "That the defendant W. W. Hoskins is not discharged from this indebtedness because the same was created by the fraud and misappropriation of the said W. W. Hoskins while acting in a fiduciary capacity, in this: That he was at the time of the liquidation of the Velasco National Bank an officer of said bank and the cashier thereof, and, in addition to the facts above alleged concerning his false and fraudulent representations to these plaintiffs to induce them to turn over the assets and property and money of the Velasco National Bank to him and his associates in said Bank of Velasco, these plaintiffs say that this defendant, W. W. Hoskins, became trustee and agent for the said Velasco National Bank and these plaintiffs, * * * and, instead of so doing as he promised and agreed, * * * this defendant, W. W. Hoskins, misappropriated so much of the funds and money and property of the said Velasco National Bank as amounted to the said sum of $499, which was the deposit of the said Bagby in said Velasco National Bank, and the said W. W. Hoskins has willfully disposed of the same and wholly defaulted in paying the same over to the said Bagby, as he obligated himself to do when he assumed the position of trustee and agent for these plaintiffs."

Defendant V. E. Hoskins answered by demurrer and exception to plaintiffs' original and supplemental petitions, on the ground that same was a misjoinder of parties plaintiff, in that he is sued by the Velasco National Bank and numerous other parties; demurrer and exception on the ground of misjoinder of cause of action, the original petition alleging the cause of action to be founded upon an assumption to pay a debt, and the supplemental petition alleging the cause of action to...