Huffman v. Farmers' Nat. Bank

• Decision Date: 02 November 1928
• Docket Number: (No. 495.)
• Citation: 10 S.W.2d 753
• Parties: HUFFMAN v. FARMERS' NAT. BANK OF CROSS PLAINS et al.
• Court: Texas Court of Appeals

10 S.W.2d 753

HUFFMAN v. FARMERS' NAT. BANK OF CROSS PLAINS et al.

(No. 495.)

Court of Civil Appeals of Texas. Eastland.

November 2, 1928.

Appeal from Callahan County Court; W. C. White, Judge.

Action by W. G. Huffman against the Farmers' National Bank of Cross Plains and others. Judgment for the named defendant, and discharging other defendants, and plaintiff appeals. Reversed in part, and rendered.

Gib Callaway, of Brownwood, for appellant.

Paul Harrell, of Cross Plains, and Samuels, Foster, Brown & McGee and T. J. Renfro, all of Fort Worth, for appellees.

LESLIE, J.

The plaintiff, W. G. Huffman, executed and delivered to B. F. Russell a check on the Farmers' National Bank of Cross Plains, Tex. It was payable to the order of said Russell and for the sum of $297.50. Subsequent to its delivery, and prior to presentation for payment, it was countermanded by Huffman. The bank disregarded the countermand, and thereafter paid the check, which came to it in the due course of mail from the First State Bank at Baird, Tex., where it had been received as a deposit from said Russell, the payee, and credited to his account. In this suit the plaintiff seeks to recover the amount of the check from the Farmers' National Bank of Cross Plains, which cashed it and charged it to his account.

The bank interpleaded B. F. Russell, the payee and indorser of the check, seeking a judgment against him for such amount as might be adjudged against it, and Russell, having applied the amount collected on the check to the payment of certain obligations alleged to be owing by Huffman, interpleaded the parties receiving those amounts, asking for a judgment against them for such portions received by them, in the event he was cast in judgment on the bank's plea.

The plaintiff, in his supplemental petition, urged a general demurrer, special exceptions, and misjoinder of parties in bringing Russell into the suit, as well as bringing into it the other parties against whom Russell asked for a judgment. The court overruled all of these exceptions and pleas, and the trial resulted in a judgment in favor of the defendant, Farmers' National Bank of Cross Plains, and the discharge of all of the other persons brought into the suit. The plaintiff preserved exceptions to the rulings of the court in the various respects, and assails the judgment as unsupported by the testimony. He has perfected his appeal, and asked that the judgment of the trial court be reversed and rendered upon the different assignments presented.

The testimony given upon the trial of the case, and especially that of Taylor Bond, the cashier of the defendant bank, clearly establishes that at the time the plaintiff, Huffman, gave the check in question on that bank, he had an account therein in excess of the amount of the check; that B. F. Russell, on receiving said check from the plaintiff, telephoned S. F. Bond, vice president of the bank, informing him that Huffman had given him the check, and inquiring if the bank would pay it, and was informed by said vice president that Huffman had an account in the bank, but that he did not know the amount thereof; that the cashier, when informed by the vice president that such a check had been drawn, made a pencil note of that fact on the ledger; that later on in the day the First State Bank at Baird called the cashier by long-distance telephone, inquiring of him if Huffman had sufficient money in the bank to pay the check, and was informed by the cashier that he did so have, whereupon the call by the Baird bank was noted by the cashier as a memorandum on the ledger sheet of the bank; that subsequent to said telephone conversations the plaintiff, through his attorney, instructed said cashier not to pay the check in controversy, and, if the bank did so, it would be held responsible for the money; that at the time of receiving this instruction the cashier stated to said Huffman, or his attorney, that he had already received two phone calls about the check, and that he had told them in both instances that Huffman had the money there to pay the check; that after this instruction from the plaintiff the cashier of the bank opened the mail, found the check in question and later in the day, and after said countermand, had the bank pay the check. This is a substantial statement of the foundation of this suit.

The Uniform Negotiable Instruments Act (Rev. St. 1925, arts. 5932-5948), which has been adopted in Texas, is decisive of this case, and adversely to the appellee bank. The following sections of that act are pertinent in the disposition of this appeal:

"Sec. 185. A check is a bill of exchange drawn on a bank, payable on demand. Except as herein otherwise provided, the provisions of this Act applicable to a bill of exchange payable on demand apply to a check."

"Sec. 127. A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof, and the drawee is not liable on the bill unless and until he accepts the same same."

"Sec. 189. A check of itself does not operate as an assignment...