GRAVES, J.
This concededly correct statement is taken from appellant's brief:
"Appellant, James Shaw, Banking Commissioner, sued appellee, R. C. Flick Mercantile Company, on a note for two thousand dollars dated the 2nd day of April, 1928, due on September 2, 1928, with ten per cent interest per annum from maturity and ten per cent attorneys' fees, which note was payable to The Yoakum State Bank, and payable at The Yoakum State Bank, and which, before maturity, for a valuable consideration, was transferred to First State Bank of Westhoff. The latter bank had failed September 8, 1928, and the Yoakum bank failed September 5, 1928.
"Appellee answered with general demurrer and general denial, and specially answered admitting the execution of the note sued on, and set up that it kept an account with the Yoakum State Bank in which it had deposited funds sufficient to pay off the note, and when the note came due it had on deposit in the Yoakum Bank $2,923.83; that on September 4th or September 5th, appellee's manager went to the bank inquiring about the note, and after being advised by the note teller that she was unable to find it, told her that he wanted to pay the note out of appellee's deposit in the bank, and that when it was found to cancel it and deliver it to the defendant.
"Appellee further pleaded that it did not know the note had been transferred to the First State Bank of Westhoff; that the note was actually in the hands of the Yoakum bank at the date of maturity; and that if the note was not the property of the Yoakum bank at its maturity, that the Yoakum bank was the agent of the Westhoff bank to collect the note, it having been sent there for collection by the Westhoff bank.
"Appellee further pleaded that its deposit in the Yoakum bank had never been repaid to it, and took the position that when the Yoakum bank failed to remit to the Westhoff bank the amount of the note, or failed to credit the account of the Westhoff bank with the same, that the loss should fall upon the Westhoff bank and not upon appellee.
"Upon a trial before the court without a jury, the court below rendered a judgment in favor of appellee. Plaintiff excepted, gave notice of appeal, assigned error, and the case is here for review."
The trial court filed these findings of fact and law:
"4. The Westhoff Bank and Yoakum Bank were substantially under the same management and ownership. The former often purchased from the latter notes it held, given by borrowers at Yoakum, and just before maturity of a note so purchased the Westhoff Bank would send it to the Yoakum Bank. The Yoakum Bank had authority to collect it and either remit the proceeds, or give the Westhoff Bank credit for the proceeds on the books of the Yoakum Bank.
"5. The Westhoff Bank had an account, and money on deposit to its credit in the Yoakum Bank at the time herein mentioned.
"6. During the year 1928 and up to the time that The Yoakum State Bank failed on the evening of September 5, 1928, defendant was a customer of said Yoakum Bank and had accumulated money in said bank for the purpose of paying said note at maturity, and defendant had on deposit in said Yoakum Bank at all times from and after September 1, 1928, more than sufficient to pay the entire amount due on said note. This deposit has not been withdrawn by or paid to defendant or its order, either in whole or in part, except as herein stated.
"7. On August 31, 1928, said Westhoff Bank, without indorsing anything on the note in suit, sent it as it was, bearing the blank indorsement of the Yoakum Bank, to the Yoakum Bank, with other notes which said Yoakum Bank had taken from its customers and transferred to the Westhoff Bank.
"8. The note sued on in this cause reached the Yoakum Bank on September 1, 1928, and thereafter remained in its hands until said Bank was taken over by the Commissioner of Banking of Texas.
"9. Said note matured on September 2, 1928, which was Sunday, and said Yoakum Bank was closed all during that day. The next day, Monday, September 3, 1928, said Yoakum Bank was closed the entire day, as it was the legal holiday known as `Labor Day.' Said Bank was engaged in business, with its doors open as usual, throughout the business days of Tuesday, September 4th, and Wednesday, September 5th, 1928, receiving deposits and paying checks.
"10. After banking hours, which terminated at 6 P. M., on September 5, 1928, the Banking Commissioner took charge of said Yoakum Bank, declared it insolvent, and he has been ever since liquidating its affairs as an insolvent state bank.
"11. On Wednesday, September 5, 1928, during banking hours, while The Yoakum State Bank was open, and engaged in business, receiving deposits and paying out money, said Frobese, manager of defendant, went to said Bank and requested it to deliver to him the note sued upon in this cause. He was informed by the note teller, who usually attended to the collection of notes in the bank, that the note in suit could not be found at that time. The note teller then offered to give Frobese a receipt showing the payment of the note, but after writing it decided she had best not do so and told Frobese it would be best the see the Cashier. Frobese waited to see the Cashier, but could not do so, and finally told the note teller to transfer the money from the account of defendant in payment of the note.
"12. At some time not precisely shown the notation `Pd' was placed upon the note. The proof shows that said notation was on the note a few weeks after the two banks failed, but had been erased before it was offered in evidence upon the trial of this cause. Such erasure occurred before said note was sent to the attorneys for the plaintiff for suit.
"13. I find that The Yoakum State Bank accepted the order upon it to pay the note out of defendant's deposits, said deposit being more than sufficient for the purpose, which order existed and was made by reason of the fact that the note was by its terms payable at said The Yoakum State Bank; and also by the verbal order of the manager of defendant to transfer a sufficient amount out of the funds of defendant which it then had on deposit in said Bank to pay said note.
"14. I find that said note was paid by defendant to The Yoakum State Bank.
"15. If it be held that title to the note did not pass back to the Yoakum State Bank, then I find that The Yoakum State Bank was selected by The First State Bank of Westhoff as its agent, for the collection of said note, and the Yoakum Bank was the agent of said Westhoff Bank for such purpose at the times herein mentioned.
"16. I find that The Yoakum State Bank was negligent in not remitting the amount due on said note to The First State Bank of Westhoff, or in not giving the latter bank credit for such proceeds.
"17. I find that the Yoakum State Bank was negligent in that it carelessly negligently failed to transact the business entrusted to it by the Westhoff Bank and negligent in not finding and in not being able to find the note when Frobese called for it.
"18. The loss sustained by The First State Bank of Westhoff in that it did not get the amount owing on said note was caused by and due to the negligence of The Yoakum State Bank.
"Conclusions of Law.
"1. I conclude as a matter of law that said note was paid by defendant to The Yoakum State Bank, of Yoakum, Texas, prior to the time it failed, whether said note was the
property of the Westhoff Bank at maturity, or whether by the facts aforesaid it again became the property of the Yoakum Bank.
"2. If, however, the note was not paid, the failure to secure payment was due to the negligence of the Yoakum State Bank, and the loss resulting therefrom should fall on the one responsible for the fault, the Westhoff Bank, through its agent, and not on defendant."
Appellant assails the judgment through a number of propositions, whereby, in material substance, he contends:
(1) The evidence is insufficient to sustain the findings either that the Yoakum bank accepted appellee's order to charge the note against its account, or that the same was paid.
(2) The Yoakum Bank, being in a failing and insolvent condition when it so received the note for collection—hence without authority at that time to act as collecting agent for another bank—was in the attending circumstances not guilty of such negligence as the maker could complain of in failing either to send to the owner the amount due thereon out of the maker's deposit, or to charge the same to its account, there being no agreement to thus charge, but would have been guilty of fraud, had it undertaken to do either of these things.
(3) When the Yoakum Bank transferred this note without recourse, having thereby parted with all interest therein, it no longer owed the maker any duty whatever concerning it, but merely, on thereafter receiving it back for collection, was required to exercise due diligence as the sender's agent with respect to that business.
We conclude that none of these contentions should be sustained, but rather that this counter proposition of the appellee, supported as it is by the appended authorities, undermines them all in support of the trial court's judgment: "The appellee, maker of the note expressly made payable at the Yoakum State Bank, where appellee had funds on deposit at maturity of the note, and at all times thereafter, more than sufficient to pay it, and the note having been sent to such bank for collection...
