Mercantile Bank & Trust Co. v. Schuhart

• Decision Date: 18 June 1924
• Docket Number: (No. 2350.)
• Citation: 277 S.W. 1087
• Parties: MERCANTILE BANK & TRUST CO. et al. v. SCHUHART et al.
• Court: Texas Court of Appeals

277 S.W. 1087

MERCANTILE BANK & TRUST CO. et al. v. SCHUHART et al.

(No. 2350.)

Court of Civil Appeals of Texas. Amarillo.

June 18, 1924.

On Motion for Rehearing and to Certify, October 8, 1924.

On Hearing after Response to Certified Questions, January 20, 1926.

Appeal from Dallam County Court; A. M. Reese, Judge.

Action by E. G. Schuhart and others, partners doing business as Schuhart Grain Company, against the Mercantile Bank & Trust Company and others, in which the defendant First National Bank pleaded over against the Mercantile Bank & Trust Company, and the Mercantile Bank & Trust Company filed a plea of privilege. From judgment entered in favor of plaintiffs and in favor of defendant the First National Bank against the Mercantile Bank & Trust Company, defendants appeal. Judgment overruling plea of privilege affirmed, and case reversed and remanded for trial on the merits.

W. I. Gamewell and Clifford Braly, both of Dalhart, for appellants.

Bailey & Richards, of Dalhart, for appellees.

BOYCE, J.

Plaintiffs, E. G. Schuhart and others, partners engaged in the grain business in the name of Schuhart Grain Company, brought this suit against the First National Bank of Dalhart, the Mercantile Bank & Trust Company of Dallas, and Luke Johnson and C. J. Thomas of Dallas county, the last two parties being engaged in the grain business under the name of the Interstate Products Company, to recover damages in the sum of $407.66, and interest, growing out of the shipment of a car of corn by the plaintiffs to Crisp, Tex., for delivery on contract of sale by the plaintiffs to the Interstate Products Company. The plaintiffs alleged that they sold the car of corn to the Interstate Products Company, shipping it to Crisp, Tex., "being a station commonly known as a blind station, at which freight could not be paid"; that because of such fact they, at the purchasers' request, prepaid the freight and drew on the purchasers for the sale price of the corn and freight charges; that plaintiffs deposited this draft in the First National Bank of Dalhart, Tex., for collection, and were given credit therefor by such bank; that the Dalhart bank forwarded the draft to the Dallas bank; that both banks were negligent in the handling of such collection in this; that the draft was received by the Dallas bank about February 27, 1921; that it held the draft until March 21, 1921, without presentation for payment or protest, and about said time returned it to the Dalhart Bank without notice prior to such date that it had not been presented or paid; that it was the duty of the Dalhart bank to follow up the draft with inquiries within due time after sending it out and to learn of the status of the collection and notify plaintiffs thereof, and that it failed to do this; that plaintiffs, having received credit for said draft, in the absence of notice to the contrary, believed that it was paid; that it was finally presented for payment on April 21, 1921, and protested for nonpayment; that on account of the manner in which the car was shipped the purchasers were able to get possession of same without payment of the draft; that, if said draft had been duly presented, it would have been paid, or, if it had not been paid, and the defendant banks had discharged their duty, the plaintiffs would have had notice thereof in sufficient time to divert the shipment and prevent it from coming into the possession of the purchaser; that said purchasers are "now insolvent"; that the plaintiffs have sustained damages in the sum of $407.66, with interest, and that said claim and demand is past due and unpaid.

The Dalhart bank pleaded over against the Dallas bank in the event judgment should be in favor of plaintiff against it. The Dallas bank filed a plea of privilege to be sued in Dallas county. The plea of privilege was tried with the trial on the merits. A jury was waived, and the trial court overruled the plea of privilege of the Dallas bank, awarded the plaintiffs judgment against all the defendants for the amount sued for and in favor of the Dalhart bank over against the Dallas bank in the event it was compelled to pay the judgment.

We overrule the proposition that it was error to try the plea of privilege with the case on its merits. Wichita Mill & Elevator Co. v. Simpson (Tex. Civ. App.) 227 S. W. 352; Smith v. Citizens' National Bank (Tex. Civ. App.) 246 S. W. 407.

The Dallas bank, in its plea of privilege, alleged, in addition to the customary allegations of such plea, that the First National Bank of Dalhart, the only defendant residing in Dallam county where the suit was brought, was not, on the allegations of the petition, liable to the plaintiffs, and further that the allegations of liability as to such bank were false and were fraudulently made for the purpose of conferring jurisdiction. The case of Tillman County Bank v. Behringer (Tex. Sup.) 257 S. W. 209, is relied on by appellants in support of their contention that the pleadings show no such liability on the part of the Dalhart bank as will sustain plaintiff's right to lay the venue of the case in Dallam county. In that case the only basis of liability of the bank forwarding an item deposited with it for collection was the negligence of the correspondent bank, and it was sought to hold the forwarding bank liable on the theory that the collecting bank was the agent of the forwarding bank; the Supreme Court denied liability on this ground. But here an independent charge of negligence in the matter of the handling of the business is lodged against the Dalhart bank sufficient, we think, to make a case of liability against it, irrespective of the question as to whose agent the Dallas bank might be.

The evidence is to the effect that the allegations on which the liability of the Dalhart bank is based are true, so that the charge that false allegations were made to secure jurisdiction is not sustained. There is some evidence to the effect that plaintiffs did not intend to enforce the judgment, if one was secured, against the Dalhart bank. No agreement to such effect appears to have been made; one of the plaintiffs simply stating in his testimony that on account of favors the Dalhart bank had extended to his firm he had rather lose the debt than make it pay the judgment. This state of mind on the part of the plaintiffs, with nothing binding on them legally not to change it, does not, we think, show that the suit against the Dalhart bank was fictitous in such a way as to require that the Dalhart bank be disregarded in determining the venue of the case. We therefore overrule those propositions which complain of the judgment overruling the plea of privilege.

One proposition urgd by appellants is that the petition states no cause of action, in that it appears therefrom that the plaintiffs were given credit for the draft by the Dalhart bank, and there is no allegation that the draft was thereafter charged back to their account or that they had been...