Kempner v. Huntsville State Bank
| Decision Date | 08 February 1926 |
| Docket Number | (No. 8739.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 282 S.W. 325 |
| Parties | KEMPNER et al. v. HUNTSVILLE STATE BANK. |
| Court | Texas Court of Appeals |
Appeal from Harris County Court; Roy F. Campbell, Judge.
Action by the Huntsville State Bank against I. H. Kempner and others. Judgment for plaintiff, and defendants appeal. Reversed and rendered.
Williams, Neethe & Williams, of Galveston, for appellants.
Vinson, Elkins, Sweeton & Weems, of Houston, for appellee.
Appellants' brief statement of the nature and result of the suit is accepted by the appellee as being correct:
The further elaboration of the pleadings referred to need not be made; it being sufficient for determination of the appeal to recite that appellants, under oath, denied any connection with or responsibility for the draft in suit, through Jordan or otherwise, asserting that he had neither been authorized to nor did execute any such instrument as their agent, and that they received no money or benefit of any sort therefrom.
In answer to the special issues, which embodied inquiries about those matters, the jury found that L. L. Kelly, about September 1, 1922, for the firm of H. Kempner, made an agreement with J. R. Jordan to buy cotton for Kempner in Walker county and draw drafts on them for the purchase price; that in making such contract he acted within both the actual and the apparent scope of his authority; that the firm ratified and confirmed the contract; that Jordan in drawing the draft for $325.73 acted as the agent of H. Kempner within both the actual and apparent scope of his authority; and that the appellee bank in cashing such draft believed from the conduct and dealing of the Kempner firm that Jordan was authorized as its agent to draw the draft.
As the summary of its pleadings has indicated, the bank sought to hold Kempners solely on the theory that Jordan either was their agent in drawing the draft through and getting the money thereon from it, or if not so in fact, that as a result of their conduct they were estopped to deny that relationship to him.
Appellants do not attack the jury's findings as being against the weight of the evidence, but insist only that there was no competent evidence showing either that the draft sued on was drawn by or the proceeds thereof paid to any agent of theirs, or that any acts, omissions, or conduct of theirs estopped them from so saying. This, therefore, is the sole question the appeal presents, and after carefully reviewing the statement of facts, we conclude that appellants are right about it.
The draft involved bore date of September 30, 1922, was for the $325.73, recited "statement attached," and was signed simply "J. R. Jordan." Attached to it was a letter likewise dated, addressed, and signed, reading:
Below hand you statement of ginning, insurance, sampling, and weighing, chargeable to the four shipments as follows, viz.:
31 B/C marked W.L.D. .................. $ 95 88
40 B/C marked U.L.D. .................. 98 46
65 B/C marked L.O.U. .................. 11 31
15 B/C marked T.I.P. .................. 32 08
_______
$325 73
It will be noted from this statement that the sum the draft evidenced was the aggregate of "ginning, insurance, sampling, and weighing" on four different lots of cotton, amounting to a total of 151 bales, which was otherwise shown to have been shipped the week before to Kempner by Mr. Jordan under drafts for the purchase price thereof, which he had already paid, with bills of lading therefor attached, Kempner having paid the drafts and so gotten the cotton on the bills of lading; so that the draft sued on was exclusively for "ginning, insurance, sampling, and weighing" that accrued at the point of origin — that is, up in Walker county—on this cotton, which had previously been bought there by Mr. Jordan and so shipped to and received at Galveston by Kempner.
Mr. Jordan testified that he was buying the cotton in Walker county for Kempner under an agreement to that effect he made with the latter's representative, Mr. L. L. Kelly, and that in doing so he would, by his own checks on the Huntsville State Bank, pay the sellers the agreed price, less these "ginning, insurance, sampling, and weighing" charges, ship the cotton right on to Kempner under a draft payable to the appellee, with attached bill of lading for the actual amount he had paid out to the sellers, and then on the following week would get a statement of these charges thereon and make separate draft on Kempners for that, which they always paid; that the transaction here involved was of that character, was carried out under that cotton buying agreement, and this draft was the only one turned down in their business together. He never at any time, however, said that he was the agent of Kempners, but limited his relation to them to the agreement he had through Mr. Kelly to buy cotton for them, and on cross-examination thus defined its terms:
In buying the cotton, his method was to give his own checks on the Huntsville bank to the sellers, and then next day to draw the drafts for the same amounts on Kempner with the bills of lading for the cotton attached, together with a letter or confirmation of sale, of which this form is typical:
"Huntsville, Tex.-29-1922
H. Kempner, Galveston, Texas. — Dear Sirs
We beg to confirm our sale to you this day by
| phone | | 14 A M |
of forty (40) bales
| telegraph | | 26 P M |
cotton at price of 21.15 cents per lb., basis
middling, landed Galveston, your weight and
grade. Please confirm. Yours very truly
"J. R.
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