Houston Nat. Exch. Bank v. Sapp

• Decision Date: 09 January 1923
• Docket Number: (No. 6481.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 252 S.W. 299
• Parties: HOUSTON NAT. EXCH. BANK OF HOUSTON v. SAPP et al.
• Court: Texas Court of Appeals

252 S.W. 299

HOUSTON NAT. EXCH. BANK OF HOUSTON v.SAPP et al.

(No. 6481.)^*

Court of Civil Appeals of Texas. Austin.

January 9, 1923.

Dissenting Opinion, January 12, 1923.

On Rehearing, March 14, 1923.

Dissenting Opinion on Motion for Rehearing, March 20, 1923.

Further Rehearing Denied April 18, 1923.

Appeal from District Court, Falls County; Prentice Oltorf, Judge.

Action by T. M. Sapp against the Columbian Refining Company, the Planters' National Bank, garnishee, in which garnishee impleaded the Houston National Exchange Bank of Houston, claimant.Judgment for plaintiff, and the Houston National Exchange Bank appeals.Reversed and rendered.

Love, Wagner & Wagner, of Houston, for appellant.

Findings of Fact.

JENKINS, J.

The plaintiff, T. M. Sapp, sued out a writ of garnishment on September 30, 1920, ancillary to a suit filed on the same date against the Columbian Refining Company; the amount sued for by plaintiff being the sum of $2,000.Said writ of garnishment was directed to the Planters' National Bank of Rosebud, Tex., and was served on said bank on the day of issuance.Judgment was thereafter rendered in favor of plaintiff against Columbian Refining Company for $2,000, with interest from ____, which judgment remained unpaid at the time of trial of the garnishment proceedings, and at the time of entering judgment therein.Garnishee, Planters' National Bank, filed an answer on January 8, 1921, admitting that at the time of service of said writ there was on deposit at said bank to the credit of the Columbian Refining Company the sum of $2,000, represented by garnishee's certificate of deposit No. 511, dated July 8, 1920, and reciting that said amount was due three months after date and that said instrument was nonnegotiable.Garnishee impleaded Houston National Exchange Bank on an allegation that said bank claimed to hold said certificate of deposit as its property.Garnishee's answer showed no indebtedness or liability on its part other than as represented by said deposit of $2,000.Garnishee bank became the depository of the $2,000 under the following circumstances: The Columbian Refining Company proposed to erect a gasoline and oil filling station in the town of Rosebud, and desired to have citizens of that town become interested in said enterprise, representing to certain citizens of said town that if they would buy stock said company would erect the filling station in part with the money thus raised locally.It was understood and agreed between the agents of Columbian Refining Company and said Rosebud purchasers of stock that their money would all be used in the erection of said filling station, and that none of said money would leave said town, but would be deposited in the Planters' National Bank and kept there until paid out for the construction of said filling station; that said agreement and arrangement was communicated to said bank, and something over $4,000 was deposited in said bank in pursuance of said agreement.The bank issued its time certificate of deposit to Columbian Refining Company, and on representations of the latter's agent that the money would remain there some time before used in the construction of said filling station, the bank agreed to pay three per cent. interest on said deposit.Said certificate contained the statement: "This certificate is not subject to check and is not negotiable."Thereafter, and before maturity, and before maturity of said certificate of deposit, the Houston National Exchange Bank became the owner of said certificate of deposit by purchase of same for value from the Columbian Refining Company, said Houston Bank having no notice of any infirmity or interest in said fund in any third party except in so far as charged with notice by reason of the provision in said certificate above quoted.When said certificate became due, demand was made on the Planters' National Bank by Houston National Exchange Bank for payment of same, and payment was refused on account of the special agreement as to the purpose and disposition of said fund as above set forth.At this time the filling station had not been constructed.Thereafter, the Columbian Refining Company having purchased and shipped material to Rosebud for the construction of said station, a part of said fund was paid out and a new certificate for the balance of $8,000 issued in the name of the Columbian Refining Company, and forwarded to the Houston National Exchange Bank.Columbian Refining Company then entered into a contract with plaintiff, T. M. Sapp, for the construction of the said filling station, representing to him that the money was in the bank and he could get it; the money referred to being the balance on deposit in the Planters' National Bank.Plaintiff was told by Columbian Refining Company's agent that said money was in said bank and was put in there for the purpose of paying said contract price.Based upon said representations, plaintiff agreed to construct said filling station for the sum of $2,000, and did so in full compliance with his contract.Planters' National Bank understood that said fund when deposited was to be used for purchasing material and for the erection of said filling station.Upon completion of said station, plaintiff drew upon the Columbian Refining Company through the Planters' National Bank for the amount agreed to be paid him, and after Columbian Refining Company had failed to pay said draft, plaintiff entered suit and had the writ of garnishment served on said Planters' National Bank.

The foregoing findings of fact by the trial court are sustained by the evidence, and are adopted by us with this addition:

At the time the contract was entered into between the Columbian Refining Company and Sapp for the erection of the filling station, and the agent of the refining company represented to Sapp that the money to pay for erecting the station was in the bank and he could get it, the cashier and agent of the bank was present and assented to such statement.The agent of the refining company referred to the $2,000 balance paid by citizens of Rosebud to be held in trust by the bank for the purpose of paying for the erection of the filling station, and the cashier of the bank so understood.

The contract with Sapp for the erection of the filling station was made a few days prior to the issuance of the $2,000 certificate.The Houston Bank, at the time the $2,000 certificate was issued, knew of the agreement of the refining company to leave the money paid by the citizens of Rosebud for stock in said company, in the Rosebud Bank, and to use the same in payment for the construction of the filling station and for no other purpose.

Sapp had no knowledge of any claim of the Houston Bank on the money in the Rosebud Bank when he made the contract to erect the filling station.

The certificate for $2,000, involved in this appeal, read as follows:

"$2,000.00.July 8th, 1920.The Planters' National Bank, Rosebud, Texas.No. 511.This certifies that Columbian Refining Company has deposited in this bank two thousand dollars payable to the order of themselves in current funds on the return of this certificate properly indorsed, three months after date with interest at 3 per cent. per annum, for the time specified.This certificate is not subject to check and is not negotiable.[Signed]E. A. Donaldson, Cashier.No interest after maturity."

The original certificate for $4,100 was the same in all respects as the above certificate, except as to date, number, and amount.

E. A. Donaldson, cashier of the Rosebud National Bank, was one of the citizens of Rosebud who subscribed for stock in the Columbian Refining Company, under the agreement that the same should be deposited in said bank and expended in the construction of the filling station.

The court filed the following conclusions of law:

"Conclusions of Law.

"By virtue of the representations and agreement between the Columbian Refining Company and the persons from whom said fund was raised, the deposit of $2,000 in the Planters' National Bank became a trust fund, which was received by said bank as such and intended and agreed to be expended for the construction of the filling station, and the parties to said agreement had a right to demand that said fund be so applied, and the Houston National Exchange Bank acquired said certificate of deposit subject to the carrying out of the said agreement.That the transaction between Columbian Refining Company and the plaintiff Sapp with reference to said fund amounted to an assignment of same to said plaintiff.I therefore conclude that the plaintiff is entitled to recover said $2,000 fund and to recover of defendantHouston National Bank all costs herein."

Judgment was rendered in accordance with said conclusions of law.

Opinion.

Appellee Sapp filed suit against the Columbian Refining Company for $2,000, the price agreed to be paid to him for erecting a filling station at Rosebud, Tex., and, at the same time, he sued out a writ of garnishment against the Rosebud Bank.He afterwards obtained judgment against the refining company for the amount sued for.

The Rosebud Bank answered, among other things, that it held $2,000 on deposit in the name of the refining company.Had it not further answered, of course, Sapp would have been entitled to judgment against the bank for that amount.However, the Rosebud Bank, in its answer, stated that the appellant was claiming the $2,000 by virtue of a certificate of deposit issued for the same; which certificate was No. 511, dated July 8, 1920, and reciting that said amount was due and payable three months after date, and that said instrument was nonnegotiable, and that the bank was indebted to whoever might be entitled to the $2,000, and was ready to pay the same when that issue was determined.It prayed that the appellant be made a party, and that the right to said $2,000 might be adjudicated, to the end that the garnishee should be fully protected by...