Parma v. First Nat. Bank

• Decision Date: 09 October 1929
• Docket Number: (No. 7385.)
• Citation: Parma v. First Nat. Bank, 22 S.W.2d 957 (Tex. App. 1929)
• Parties: PARMA v. FIRST NAT. BANK OF CAMERON.
• Court: Texas Court of Appeals

22 S.W.2d 957

PARMA v. FIRST NAT. BANK OF CAMERON.

(No. 7385.)

Court of Civil Appeals of Texas. Austin.

October 9, 1929.

Rehearing Denied November 20, 1929.

Appeal from District Court, Milam County; John Watson, Judge.

Action by the First National Bank of Cameron against J. J. Parma, in which defendant pleaded a counterclaim. Judgment for plaintiff, defendant appeals. Reversed and remanded.

W. A. Morrison, of Cameron, for appellant.

Henderson, Kidd & Henderson, of Cameron, for appellee.

BAUGH, J.

The First National Bank of Cameron sued J. J. Parma to recover $3,218.99, paid out by it for him on overdrafts given by Parma to various farmers in payment for cotton purchased by him between October 5 and October 12, 1927. Parma admitted liability on the checks, but pleaded a counterclaim for $4,950.64, alleging failure of the bank to credit him with a check for that amount drawn by the Vest Cotton Company in his favor and delivered to it about September 17, 1927, or failure to notify him within 24 hours of its dishonor, as required by law, if in fact such check was dishonored.

In the alternative he pleaded a fraudulent conspiracy between said bank and the Vest Cotton Company, whereby the bank converted 44 bales of cotton belonging to him, and of the value of $4,950.64. To the latter plea, various special exceptions were sustained, Parma declined to amend, withdrew the first count in his cross-action, and the court thereupon entered judgment upon an instructed verdict in favor of the bank for the amount of its claim, and that Parma take nothing by his cross-action; hence this appeal.

The only issues before us are, therefore, the sufficiency of appellant's pleadings in his cross-action as against the special exceptions sustained. Special exceptions B and F so sustained attack paragraphs 7 and 8 of appellant's cross-action on the ground that such pleadings showed that appellant's demand was for unliquidated damages, founded upon a tort, and not a cause of action arising out of, incident to, or connected with, the bank's cause of action.

Appellant's pleadings are lengthy, and we shall not undertake to set them out in detail. Paragraphs 7, 8, and 9 set out appellant's alternative grounds of recovery on his cross-action. These paragraphs must, in view of their contents, be considered in connection with paragraphs 2 to 6 setting up appellant's first ground of recovery on his cross-action, and when so taken we think they sufficiently alleged a counterclaim or set-off authorized under articles 2015 and 2017, Rev. St. 1925.

In its original petition the bank alleged an agreement between it and Parma, made in August, 1927, covering the entire cotton buying season for that year; and that pursuant to that agreement it honored his overdrafts for cotton so bought by him. In his cross-action, appellant pleaded, amongst other things, that such agreement also included the Vest Cotton Company, setting out in detail a working arrangement between him, the bank, and the Vest Cotton Company, and the modus operandi of same; and alleged that the arrangements between him and the Vest Cotton Company were "acquiesced in, acted upon and agreed to" by the bank. The stricken pleadings did allege a tort committed by the bank conspiring with the Vest Cotton Company upon appellant. Nor does appellee's original petition show that such alleged tort was incident to or connected with the original contract between the bank and Parma; but appellant's pleadings do sufficiently allege a general working agreement between the three parties concerned covering the entire cotton season for 1927 to authorize a trial upon the cross-action which admittedly did arise out of the cotton dealings between said three parties during that season. The fact that the demand was...