Roland v. Republic Nat. Bank of Dallas, 4996
| Decision Date | 11 February 1971 |
| Docket Number | No. 4996,4996 |
| Citation | 8 UCCRep.Serv. 1076,463 S.W.2d 747 |
| Parties | 8 UCC Rep.Serv. 1076 Jack ROLAND, Appellant, v. REPUBLIC NATIONAL BANK OF DALLAS, Appellee. |
| Court | Texas Court of Appeals |
Harold B. Stone, Dallas, for appellant.
Gardere, Porter & DeHay, Gordon H. Rowe, Jr., Dallas, for appellee .
This is an appeal by plaintiff Roland from judgment of the trial court overruling his motion for summary judgment, and granting defendant bank's motion for summary judgment that plaintiff take nothing, in plaintiff's suit against defendant for damages for wrongful disbursement of plaintiff's funds.
Plaintiff sued defendant bank alleging plaintiff contemplated a business transaction with Waldo Evans; that plaintiff and Evans were to form a corporation named 'Central American Steel of Texas, Inc.,'; that Evans was to obtain title in the name of the corporation to certain property; that on April 10, 1968 plaintiff deposited $5000 in defendant bank in the name of the Corporation; that on April 10, 1968 plaintiff and Evans executed signature cards under the name of the Corporation; that both signatures were required to make a withdrawal from the account; that later in the day Evans requested plaintiff to give him 2 checks for $2500 payable to Paul Jastrow, so that 'Evans could have the checks as evidence that the money was available' to pay Jastrow for property to be obtained for the corporation; that plaintiff filled out 2 checks for $2500 payable to Jastrow but wrote 'Central American Steel' at the bottom of the check instead of 'Central American Steel of Texas, Inc .,' and dated the check April 14, 1968.
Plaintiff alleges Evans alone signed the checks; delivered them to Jastrow on April 10, 1968; that the bank was not to cash any check on the corporation until a corporate resolution was filed; that the bank cashed the checks on April 10, 1968, that the bank was guilty of gross negligence in cashing the checks; that plaintiff has been damaged $5000, attorneys fees and other damages.
The bank answered among other things that the account though styled a corporate account was opened by plaintiff and Evans as joint adventurers contemplating the formation of a corporation which was never formed; that the purpose of the joint venture was to acquire property in Costa Rica through Paul Jastrow; that the withdrawals were paid by defendant to Jastrow on checks drawn on the account signed by Evans in exchange for the Costa Rica property; that plaintiff was present when the checks were cashed, and made no objection or complaint until 7 months later.
Both plaintiff and defendant moved for summary judgment. The record consists of the pleadings, motions for summary judgment and depositions of plaintiff, Evans and Jastrow.
The trial court denied plaintiff's motion, and granted defendant bank's motion for summary judgment that plaintiff take nothing.
Plaintiff appeals on 8 points contending: 1) The trial court erred in overruling plaintiff's motion for summary judgment in that: a) the 2 checks were dated April 14, but were cashed on April 10; b) the checks were signed 'Central American Steel', and not 'Central American Steel of Texas, Inc.,' as the account was carried; c) the signature card required 2 signatures (plaintiff and Evans) and only Evans signed the checks. d) The corporate resolution authorizing checking had not been filed. 2) The trial court erred in granting defendant's motion for summary judgment because a) the defense of laches relied on by defendant is not available in this case, and is a fact question; b) the defense of contributory negligence alleged by defendant is a fact question.
We revert to plaintiff's contention the trial court erred in overruling his motion for summary judgment. Plaintiff asserts that because the checks were dated April 14, but cashed on April 10 the bank should not have cashed same. When the bank paid Jastrow the face value of the checks on April 10, it became a holder in due course of the checks, and when no complaint or stop payment was made prior to April 14, it had the right to reimburse itself from the depositor's account. See Section: 3--114(1), 3--304(4), 4--208(1)- (c), 4--209, 3--302(1) Uniform Commercial Code.
Plaintiff asserts that because the checks were signed 'Central American Steel' instead of 'Central American Steel of Texas, Inc.' that the bank should not have cashed same. The checks were given to plaintiff and Evens when the account was opened and had the account number magnetically encoded on their face. Plaintiff wrote 'Central American Steel' on the bottom of the checks, and handed them to...
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