El Paso Nat. Bank v. Fuchs

• Decision Date: 10 February 1896
• Citation: 34 S.W. 206
• Parties: EL PASO NAT. BANK et al. v. FUCHS.
• Court: Texas Supreme Court

34 S.W. 206

EL PASO NAT. BANK et al. v. FUCHS.

Supreme Court of Texas.

February 10, 1896.

Error to court of civil appeals of Fourth supreme judicial district.

Action by Ernesto Fuchs against the El Paso National Bank and others. From a judgment of the court of civil appeals (34 S. W. 203) affirming a judgment for plaintiff, defendants bring error. Reversed.

R. E. Beckham and Peyton F. Edwards, for plaintiffs in error. Millard Patterson, for defendant in error.

BROWN, J.

The El Paso National Bank was organized under the laws of the United States, and situated at the city of El Paso, Tex. By a joint arrangement between Edgar B. Bronson, the president of the El Paso National Bank, acting for the said bank, and Manuel Dublan, secretary of the treasury and public credit of Mexico, by authority of the Mexican government, the Banco National de El Paso, Texas, Sucursal de C. Juarez, Mexico, was organized as a branch bank of the El Paso National Bank, and was located in Juarez, Mexico. E. B. Bronson was president, and W. H. Austin cashier, of both banks. The profits of the Juarez bank went to the National Bank of El Paso. The ordinary business of the bank was conducted by the president and the cashier, either one acting in the absence of the other. On July 12, 1893, Ernesto Fuchs deposited with the El Paso National Bank $3,000 Mexican money, of the value of $1,800 in American money. The following letter accompanied the shipment of the money: "El Paso National Bank, El Paso, Texas—Gents: Inclosed please find express receipt of my remittance of three thousand Mexican dollars, which I hereby deposit in your bank, to my disposal as soon as silver may go up. I beg you to have the kindness to wire me, for my account, as soon as you would take the pesos at 65 cents, American, so that I can wire to you to buy or not. I would be very much obliged to you for getting your idea as to what will be the future of silver, as at present rate I would lose large amounts. Hoping to hear from you, I remain, very truly yours, Ernesto Fuchs." The following reply was sent by the bank to the said letter: "Ernesto Fuchs, Esq., Villa Lerdo, Mexico—Dear Sir: Your favor of the 9th inst. is received, inclosing express receipt for $3,000 Mexican silver, which shipment we have duly received, and will hold subject to your order as requested, and will advise you whenever the price may rise as high as 65 cents. E. B. Bronson, President." Immediately upon the receipt of this money, E. B. Bronson, the president of the bank, sent it to the Juarez bank on the Mexican side, where it was entered to the credit of Fuchs as a general depositor, and the money went into the general fund as assets of the bank. Upon receipt of the money, the following was sent from the Juarez bank to Fuchs: "Mr. E. Fuchs, Villa Lerdo—Dear Sir: At the request of the El Paso National Bank we have noted the contents of your favor of July 9th, directed to the same, and shall have the pleasure to notify you at once as soon as Mexican silver is 65 cents by wire. Yours truly, Banco National de El Paso, Texas. Sucursal de C. Juarez, Mexico, Max Miller, Mgr." On August 2, 1893, the El Paso National Bank failed, as likewise did the bank in Juarez. One Beckham was appointed receiver of the El Paso National Bank, and Marcello Leon was appointed receiver of the bank on the Mexican side. Between the date of the deposit of the money and the suspension of the bank, Fuchs obtained from the bank in Juarez $952 in American money on the faith of the said deposit. He did not know, at the time, that his money was in the Juarez bank, but believed that it was in the El Paso National Bank, where it was originally deposited, and he remained in ignorance of its transfer to the Mexican bank until after the failure of the said banks. E. B. Bronson, the president of the El Paso National Bank, transferred the money to the bank in Juarez without having referred it to the board of directors, it being, as he said, routine business. Fuchs sued the El. Paso National Bank, represented by its receiver, E. B. Bronson, its president, and W. H. Austin its cashier, to recover the value, in American money, of the $3,000 of Mexican money deposited by him, which he alleged to be, at the time of the conversion, 60 cents on the dollar in American money. An attachment was sued out, and levied upon real estate of Bronson and Austin, and a motion was made to quash the attachment, which was overruled. The court gave judgment against the El Paso National Bank and against E. B. Bronson, and foreclosed the lien of the attachment upon the property of Bronson, but gave judgment in favor of Austin against the plaintiff. This judgment was affirmed by the court of civil appeals (34 S. W. 203), from which this writ of error is sued out.

The only question for our consideration is the action of the court in refusing to quash the writ of attachment. The ground upon which the motion was made, and which is here urged, is that the act of Bronson, in sending the money to the Juarez bank, was a tort, and that the action, as against him, was for damages, and would not support the writ of attachment. The writ of attachment in this case was issued under articles 152 and 153 of the Revised Statutes. Three things are required by these articles to be embraced in every affidavit for a writ of attachment: (1) The plaintiff must swear "that the defendant is justly indebted to him," and the amount of the demand; (2) that the attachment is not sued out for the purpose of injuring or harassing the defendant; and (3) that the plaintiff will probably lose his debt unless such attachment is issued. Eleven grounds for attachment are prescribed by that statute. In every instance in which the cause of action is mentioned, it is denominated a "debt," and in every instance in which the person to be injured by the acts of the defendant is mentioned, he is called "creditor." The question to be determined, upon this statute, is, what is the meaning of the words "debt" and "creditor," as therein used? The rule of construction to be applied is by Mr. Sutherland clearly stated, thus: "The remedy by attachment is special and extraordinary, and the statutory provisions for it must be strictly construed, and cannot have force in cases not plainly within its terms." Suth. St. Const. § 393; Elliott v. Jackson, 3 Wis. 649. In the case of Barber v. City of East Dallas, 83 Tex. 150, 18 S. W. 438, the court defines the word "debt" as follows: "In common parlance, the word `debt' is sometimes used to denote any kind of a just demand, and has been differently defined, owing to the...