"I. The court finds that on the 16th day of September, 1907, the defendants C. D. Haley, W. H. Littlefield, and Edgar Littlefield, composing the firm of the Sagerton Hardware & Furniture Company, purchased of the plaintiff the Gamer Company, for W. P. Caudle, certain goods, wares, and merchandise consisting of pipes, tanks, appliances, and attachments for windmills, one gasoline engine, and appliances and attachments therefor, and other articles for the installing of a waterworks plant at Sagerton, Tex., by the said W. P. Caudle, aggregating $2,500, upon a written contract or order for the same, and which goods were shipped out on the 8th day of October, 1907, and received at Sagerton on October 22, 1907, at which time the Sagerton Hardware & Furniture Company wrote plaintiff a letter which was as follows:
"`Sagerton, Texas, Oct. 23, 1907
"`The Gamer Company, Fort Worth, Texas —Gentlemen: We herewith hand you statement and check to cover invoice of Oct. 8 outfit for Mr. Caudle.
Invoice ....................... $2,500 78
By cash Caudle with order...... $ 500 00
" commission ................. 370 00
"freight paid ................ 194 90
__________
$1,064 90
Check to balance............... $1,435 88
"`We are returning the freight bill and credit memorandum and assuring you that we will try to land another soon, we are, Very respectfully, Sagerton Hdw. & Furn. Co.
"`P. S. Send receipt as the balance due on Caudle outfit as we don't want him to get next. Yours, S. H. & F. Co.'
"That as stated in said letter the check of the Sagerton Hardware & Furniture Company for $1,435.88 was inclosed therein being for the balance due for said goods as shown in the itemized statement set forth in the foregoing letter; the Sagerton Hardware & Furniture Company charging a commission of $370 for the sale of said goods.
"II. The court finds that the order for the goods in question was signed by W. P. Caudle, and contained the following excerpt: `In consideration of which I or we hereby agree to pay you for the same at your office in Fort Worth, Tarrant County, Texas, as well as for all goods theretofore or hereafter bought or ordered from you, together with ten per cent. interest from maturity of bills and ten per cent. attorney's fees if placed in the hands of attorneys or judicial proceedings be used for collection.'
"III. The court finds that on September 28, 1907, the Sagerton Hardware & Furniture Company wrote the Gamer Company as follows:
"`Sagerton, Texas, Sept. 28, 1907
"`The Gamer Company, Fort Worth, Texas — Gentlemen: Please ship out the outfit we bought for Mr. Caudle for waterworks here, at once and send the bill of lading to First Bank of Sagerton, Sagerton, Texas, to collect for us. Thanking you in advance for the favor and for all past favors, we are, Very respectfully, Sagerton Hdw. & Furn. Co.'
"IV. The court finds that for several months prior to the transaction in question the Gamer Company had been doing its banking business with the Waggoner Bank & Trust Company of Ft. Worth, Tex., was a reputable bank, and that the Waggoner Bank & Trust Company had as its correspondent through whom it made collections the City National Bank of Dallas, Tex., also a reputable banking institution.
"V. The court finds that there was no other er bank at Sagerton, Tex., save and except the First Bank of Sagerton, Tex., a private bank.
"VI. The court finds that the Gamer Company deposited the check of the Sagerton Hardware & Furniture Company for $1,435.88 with the Waggoner Bank & Trust Company, which check was made payable to the Gamer Company drawn on the First Bank of Sagerton, Tex., dated October 23, 1907, and signed by the Sagerton Hardware & Furniture Company, which deposit was made on October 25, 1907, the plaintiff indorsing the check, `Pay to the order of the Waggoner Bank & Trust Company of Fort Worth, Texas,' the date of deposit being the date of receipt of said check. Signed: `The Gamer Company.'
"VII. The court finds that the Gamer Company was making daily deposits with the Waggoner Bank & Trust Company and took credit for this check in its passbook, and that on the said October 25, 1907, the Waggoner Bank & Trust Company made a debit charge on one of its general forms for that purpose against the Gamer Company for $3.60, which was to be the collection charges on the Sagerton Hardware & Furniture Company check, and that on November 4, 1907, the Waggoner Bank & Trust Company made a debit charge against the Gamer Company of $1,460.88, the same being made up as shown by credit clip, of the check of the Sagerton Hardware & Furniture Company for $1,435.88 and another check for $25.00 drawn on the same bank; the
officers of the Waggoner Bank & Trust Company telling the plaintiff at the time it made this charge ticket that the payment of the check had been refused but that the check had not been returned to the Waggoner Bank & Trust Company yet.
"VIII. The court further finds that at the time said check for $1,435.88 was deposited the Gamer Company made no inquiry as to how the Waggoner Bank & Trust Company was going to collect the check, and gave no instructions, the plaintiff simply indorsing the check and depositing in the usual course of business and receiving the credit on the books of the bank in the usual way, and that the Gamer Company had no knowledge of what way or agency was employed by the Waggoner Bank & Trust Company in making collections of checks deposited with them upon other banks.
"IX. The court finds that when Mr. Gamer, president of the Gamer Company, received notice that the $1,435.88 check had been charged back against the account of the company he went to the Waggoner Bank & Trust Company, and was advised that the check had been sent for collection, but that the bank had notice that they could not pay right then, but that the bank would pay it, but that they did not know just when, referring to the Sagerton Bank, and that Mr. Gamer then insisted on getting back the check so that he could send some one to see about the matter; that said check was never at any time returned to the Gamer Company.
"X. The court further finds: That the Waggoner Bank & Trust Company forwarded the check to the City National Bank of Dallas, Tex., indorsing thereon: `Pay to the order of any bank or banker (all prior indorsements guaranteed). Waggoner Bank & Trust Company' — such check being received by the City National Bank of Dallas, Tex., October 26, 1907, and that the said City National Bank of Dallas, Tex., indorsed the check, `Pay to the order of any bank or banker, previous indorsements guaranteed. City National Bank of Dallas, Tex., Lynn P. Talley, Cashier,' and then immediately forwarded the check direct to the First Bank of Sagerton. That about November 1, 1907, not having received the money back on said check, E. S. Gillespie, then manager of the transit department of the City National Bank, telephoned the First Bank of Sagerton, and, not being able to talk direct, had to talk through Stamford, talking through the operator and asking about the letter containing said check, and which letter had several other items thereon, and was advised that the bank could not remit, and advising that the check in question had already been delivered to the depositor or canceled.
"XI. The court further finds that the City National Bank then notified the Waggoner Bank & Trust Company as follows: `On the 26th we credited your account $1,435.88, same being an item on Sagerton, Tex. Sagerton advises us that the item has been paid, but that they cannot remit to cover same now, but will do so within the course of a few days. We are, therefore, charging your account with this amount and will be pleased to credit same to you upon receipt of remittance from Sagerton to cover.'
"XII. The court finds that the City National Bank of Dallas, Tex., and the Waggoner Bank & Trust Company made no other effort...
