Owen v. American Nat. Bank

• Decision Date: 29 June 1904
• Citation: 81 S.W. 988
• Parties: OWEN et al. v. AMERICAN NAT. BANK OF AUSTIN.
• Court: Texas Court of Appeals

81 S.W. 988

OWEN et al. v. AMERICAN NAT. BANK OF AUSTIN.

Court of Civil Appeals of Texas.

June 29, 1904.

Error from District Court, Travis County; George Calhoun, Judge.

Action by Frank B. Owen against the American National Bank of Austin, in which A. Robinson, trustee in bankruptcy of plaintiff, intervened. Judgment for defendant, and plaintiff and intervener bring error. Affirmed.

Fiset, Miller & McClendon, for plaintiffs in error. Hogg, Robertson & Hogg, for defendant in error.

EIDSON, J.

Plaintiff in error Owen instituted this suit in the court below against the defendant in error for damages on account of refusing payment of and protesting certain drafts drawn by him on defendant in error. He alleges that he was a merchant and banker in good financial standing and credit, and had on deposit with defendant in error, subject to his check, more than sufficient money to pay the drafts which he drew and delivered to certain customers, and that defendant in error refused to pay such drafts when properly indorsed and presented, and had some of them protested, and notice of protest sent to the payees and indorsers, and that, in consequence, his credit was ruined and he was forced to go into bankruptcy. Plaintiff in error Owen claimed actual damages in the sum of $30,000, and punitive or exemplary damages in the sum of $10,000. Plaintiff in error A. Robinson, trustee, intervened, and alleged that he was appointed by the bankruptcy court trustee of the bankrupt estate of plaintiff in error Owen, and that said court authorized him, as trustee, to intervene in said suit. The defendant in error answered in the court below by demurrers, which were overruled, and a general denial, and a special answer setting up, in substance, that plaintiff in error Owen was on May 3, 1902, insolvent, and that at that time he was indebted to the defendant in error in the sum of $3,655.92, balance on his three promissory notes executed by him to defendant in error, and that at that date said plaintiff in error had on deposit with defendant in error the sum of $275.66, and that, said plaintiff in error being insolvent, defendant in error had the right to apply the amount of said deposit to said indebtedness of said plaintiff in error, and that the defendant in error on the said date (May 3, 1902) exercised said right, and that therefore said plaintiff in error had no money to his credit with defendant in error when his checks were presented, which occurred after defendant in error had applied his (plaintiff in error's) deposit as above stated, and that therefore defendant in error was not liable in damages for refusing payment of and permitting said checks to be protested. Upon a trial before a jury, verdict was rendered in favor of the defendant in error, and judgment entered accordingly.

In their first assignment of error, plaintiffs in error complain of the general charge of the court upon the ground that it required the plaintiff, before he could recover, to prove by a preponderance of the evidence his damages; their contention being that this was a charge upon the weight of the testimony, because, as they claim, the plaintiff was entitled to a verdict by proving nonpayment and protest of his checks while he had money on deposit with the defendant with which to pay said checks, and further proving that he was at that time engaged in the banking or mercantile business. We are of the opinion that the charge of the court is not subject to the criticism that it is upon the weight of the testimony. When construed as an entirety, we think it only requires the plaintiff to prove the facts alleged in his petition, upon which he therein claims a right to recover, in order to entitle him to recover.

In their second assignment of error, plaintiffs in error complain that the court erred in instructing the jury to find for the defendant if they believed that, when the plaintiff's checks were not paid and protested, he was not in good financial standing and was insolvent, because, if he was in business, and able to meet his debts as they matured, for an indefinite length of time, the defendant had no right to refuse the payment of and protest his checks. We are of opinion that there is no error in the charge in the respect complained of, as the court gave an instruction to the jury upon the question of insolvency which was favorable to the plaintiff; and if the plaintiff, at the time the defendant in error applied the amount of his deposit to his indebtedness, was insolvent, the defendant in error had the right so to do. Neeley v. Grayson County Nat. Bank (Tex. Civ. App.) 61 S. W. 559; Templeman v. Hutchings (Tex. Civ. App.) 57 S. W. 868; Van Winkle Gin & Machinery Co. v. Citizens' Bank of Buffalo, 89 Tex. 152. 33 S. W. 862; First Nat. Bank of Texarkana v. De Morse (Tex. Civ. App.) 26 S. W. 417; Bank v. Cresson, 75 Tex. 299, 12 S. W. 819.

The third assignment of plaintiffs in error complains of the refusal of the court to give to the jury plaintiff's second special charge, to the effect that the insolvency alone of the plaintiff did not give to the defendant the right to apply the deposit of plaintiff to the payment of any indebtedness due by him to the defendant. This question has been decided against the contention of plaintiffs in error. Neeley v. Grayson County Nat. Bank, supra.

Plaintiffs in error contend in their fourth assignment of error that the court erred in its charge to the jury in instructing them that a person was insolvent when the aggregate of his property shall not be sufficient in amount, at a fair valuation, to pay his debts, because said definition of "insolvency" was...