Peters Shoe Co. v. Murray

• Decision Date: 21 January 1903
• Parties: PETERS SHOE CO. v. MURRAY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 977

PETERS SHOE CO. v. MURRAY.^*

Court of Civil Appeals of Texas.

January 21, 1903.

Appeal from Wilson county court; Thos. P. Morris, Special Judge.

Action by the Peters Shoe Company against W. O. Murray, as assignee of A. B. Briscoe. From a judgment for defendant, plaintiff appeals. Affirmed.

B. F. Ballard and L. B. Wiseman, for appellant. O. A. McCracken, for appellee.

FLY, J.

This is an appeal from a judgment against appellant in a suit in which it was sought to recover the sum of $375.20 from appellee, as the assignee of A. B. Briscoe. The cause was tried by the court without the aid of a jury, and to the findings of fact alone can this court look for its conclusions of fact, there being no statement of facts in the record. From the findings of fact it appears that on April 28, 1902, the firm of Murray, Houston & Co. were indebted to appellant in the sum of $375.20, and on that date a draft was drawn for that sum by appellant on its aforesaid debtors, and was sent to A. B. Briscoe, a banker in Floresville, Tex., for collection. The cashier of the latter presented the check to the drawees on May 2, 1902, and in payment of the same Briscoe accepted the draft of the drawees on himself, and canceled the check. Murray, Houston & Co. had on deposit with Briscoe a sufficient amount to pay the check, and he charged their account with the check, and drew his draft in favor of appellant on W. L. Moody & Co., of Galveston, Tex., for the $375.20 collected, and forwarded the same by mail to appellant. We find from the pleadings that appellant resided in St. Louis, Mo. On the morning of May 3, 1902, Briscoe closed his bank and ceased business, and in the afternoon of the same day made an assignment, naming appellee as assignee. The draft sent by Briscoe to appellant was received on May 5, 1902, and on being presented to Moody & Co. payment was refused. Payment was afterwards refused by the assignee. Briscoe was insolvent when he collected appellant's draft on Murray, Houston & Co. At the close of business on May 2, 1902, Briscoe had in cash in his bank $702.25, and when the assignee took charge there was in actual cash $473.30. Appellant was not a depositor with Briscoe, and was not credited with the amount of the draft on the books of Briscoe; the only evidence on the bank books of the transaction being an entry on the collection register and the drawing of a draft on Moody & Co. The trial judge found also that it did not appear from the evidence that appellant did not know Briscoe was insolvent, the legitimate conclusion being that it did not show anything on the subject.

The facts of this case are very similar to those in the case of Hunt v. Townsend, 26 S. W. 310, decided by this court, the material differences being that the check in that case was paid in cash, and in this was paid by a check drawn by the payor on the collecting bank, and in that a course of dealing and instructions were shown, and none were shown in this. It is the well-settled doctrine in this state, as well as in a large number of the states of the Union, that in a case like the present, where a special agency is created, and the bank has no authority to hold and credit the proceeds of the draft, but is bound by the agreement to remit them immediately to its correspondent, the relation of trustee and beneficiary is created, and the money collected, or its equivalent, can be recovered from the assignee of the insolvent bank. Bank v. Weems, 69 Tex. 489, 6 S. W. 802, 5 Am. St. Rep. 85. In regard to the property which has been mingled with the property of those receiving it, the doctrine formerly prevailed that the very property misapplied must be identified in order to give a preference over creditors, but a different and more enlightened rule prevails at this time. But, as stated in the Weems Case, above cited, if the trustee "keeps on hand a sufficient sum to cover the amount of the trust money, we think it capable of demonstration that the trust should attach to the balance that is found to remain in his hands." It is the contention of appellee that because Briscoe received no money from the payors of the draft, but merely shifted his liability from the payors to appellant, the assets of the bank were not increased by the transaction, and the trust relation was not, therefore, established between appellant and Briscoe, and cites as authority for the proposition Freiberg v. Stoddart (Pa.) 28 Atl. 1111, and Ass'n v. Clayton, 6 C. C. A. 108, 56 Fed. 759. In the first case cited, in which the opinion was rendered by the supreme court of Pennsylvania it was said: "If at the time of the assignment the plaintiffs' notes had been found by the assignee uncollected, he should have returned them. If a draft or bond or a specific package of money, received in payment of the notes, had been found among the assets coming into his hands, it should have been turned over to the plaintiffs. But...