Hull v. Guaranty State Bank

• Decision Date: 31 May 1921
• Docket Number: (No. 643.)
• Parties: HULL v. GUARANTY STATE BANK OF CARTHAGE.
• Court: Texas Court of Appeals

231 S.W. 810

HULL v. GUARANTY STATE BANK OF CARTHAGE.

(No. 643.)

Court of Civil Appeals of Texas. Beaumont.

May 31, 1921.

Rehearing Denied June 15, 1921.

Appeal from District Court, Panola County; Chas. L. Brachfield, Judge.

Suit by the Guaranty State Bank of Carthage against E. A. Hull. From a judgment for plaintiff, defendant appeals. Affirmed.

Garrison, Pollard, Morris & Berry, of Houston, and H. N. Nelson, of Carthage, for appellant.

P. P. Long, R. W. Priest, and Woolworth & Duran, all of Carthage, and Edwin Lacy, of Longview, for appellee.

HIGHTOWER, C. J.

The appellee, the Guaranty State Bank of Carthage, Panola County, Tex., a banking corporation organized under the laws of this state, filed this suit against appellant, Hull, in the district court of Panola county, claiming that appellant, a customer of the bank, had overdrawn his account in the bank to the extent of $3,042.50, and that on account of such overdraft appellant was indebted to appellee in said sum, and judgment was prayed against appellant for that amount.

Appellant, after interposing a general demurrer and general denial, alleged specially that on and prior to the 18th day of March, 1912, one R. E. Trabue was the acting president of said bank, and that as such president had control and authority over, and the general management of, its business affairs, with authority to make loans, accept and receive deposits, and collect indebtedness due said bank; that for several years prior to said 18th day of March appellant had various and sundry transactions with Trabue in his capacity as president of the bank, wherein appellant had sold and delivered to Trabue, in his capacity as president of the bank, much cotton, which transactions covered a period of several years; that Trabue, as president, would simply pass the amount of the proceeds of such cotton to the credit of appellant, and would then instruct appellant to draw against said amount; that prior to said 18th day of March, said Trabue, as president of said bank, had neglected to pass the proceeds of such cotton to appellant's credit, and that appellant, on several occasions, called Trabue's attention to such failure, and that Trabue, in his capacity of president of the bank, would promise appellant that he would have the matter attended to; that he (Trabue) had simply overlooked the matter of having the proceeds passed to appellant's account and credit, but that nevertheless he had instructed the employés in the bank to pay any check or checks that appellant might draw against the bank; that appellant did not live in the town of Carthage, but lived about five miles away, and that he had implicit confidence in Trabue, and trusted him to see that proper credits were duly entered as he had promised and agreed to do; that his bank or pass book had not been checked up or balanced for some time, and that when he carried his bank or pass book to the bank and asked the cashier or other officers of the bank to check the same up and place the proper credits there, they usually made excuses that Trabue was not in, but that they would see him and have the proper credits entered, but that Trabue, as president, had instructed them to honor all checks drawn on said bank, and that the same would be promptly paid; that on or about the 18th day of March, 1912, appellant's pass book showed that he was due the bank the sum of $5,165, when in truth he was not due said bank such amount, said Trabue as president of said bank having failed to deposit to appellant's credit money paid to him as president of the bank.

Appellant further alleged that on or about said 18th day of March, 1912, Trabue, as president of said bank, came to appellant's residence late one evening, and told appellant that the bank examiner was checking up the bank, and that he was complaining about the bank books showing overdrafts of appellant; that Trabue brought along with him a slip of paper showing that appellant was due said bank an overdraft of $5,165, which amount corresponded with appellant's pass book and last check; that appellant told Trabue at the time, as president of the bank, that he did not owe the bank such a large amount, and that Trabue told appellant that it was necessary for him to collect said amount, and that if appellant would pay same that he (Trabue) would have his account corrected and all debits properly entered; that appellant then told Trabue that he did not have the money to pay off said amount, but that he had in the town of Carthage 128 bales of cotton; that he would turn the cotton over to Trabue, in his capacity as president of the bank, so that he could liquidate said indebtedness, as shown by the books of the bank, and that appellant could within a few days go to town and have his account checked up and all proper credits allowed; that appellant turned over to Trabue on that day, as president of said bank, said 128 bales of cotton; that they agreed upon a stipulated price for said cotton, which amounted to $6,993.81; that from said amount they deducted $5,165, the amount which Trabue claimed that the bank books showed appellant to be overdrawn, and that Trabue, as president of the bank, executed to appellant his note for $14,125, being the balance that said Trabue claimed was due appellant for cotton purchased by Trabue in his capacity of president of the bank, from him, for which appellant had not been given credit at said bank; that $1,835 of this amount was the balance due from said cotton, after deducting $5,165 to cover said claimed overdraft. Appellant further alleged that Trabue, in his capacity as president of the bank, did not deposit or place to appellant's credit in the bank said sum of $5,165, but turned the same over to the bank by giving the bank a draft on another party, with bill of lading covering the 128 bales of cotton attached to the draft; that such draft was paid, and that the bank received the proceeds of said 128 bales of cotton, but did not credit, and afterwards refused to credit, appellant with said sum of $5,165, as Trabue, in his capacity as president, agreed to do; that in turning over the cotton to Trabue, as president, the same was so done to liquidate and pay off any overdraft which the bank held against appellant, with the understanding that any errors or any credits not theretofore received by appellant would be corrected; that in fact the books of the bank at that time showed that appellant had overdrawn his account $2,065.59, and that afterwards appellant drew checks, subsequent to said 18th day of March, in the aggregate amount of $682.61 which, added to the total amount due, as shown by the books of the bank, would make appellant due the bank the sum of $2,722.57; that against this amount appellant should have been credited with the sum of $5,165 paid to Trabue in his capacity as president, as before stated, which would leave a balance due appellant of $2,412.73; and appellant prayed for judgment over against said bank for the difference between $5,165 alleged to have been paid to Trabue as president of the bank, and for which he alleged the bank received the benefit, and the proceeds thereof, and the sum of $2,722.57, the amount appellant was actually due the bank.

In reply, by way of supplemental petition, appellee alleged that the authority of Trabue for the collection of debts, if any he had, was confined to the acceptance of money, and that if appe...