Slaton State Bank v. Amarillo Nat. Bank
| Citation | 288 S.W. 639 |
| Decision Date | 03 November 1926 |
| Docket Number | (No. 2712.)<SMALL><SUP>*</SUP></SMALL> |
| Parties | SLATON STATE BANK v. AMARILLO NAT. BANK. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Potter County; Henry S. Bishop, Judge.
Suit by the Amarillo National Bank against the Slaton State Bank. Judgment for plaintiff, and defendant appeals. Affirmed.
R. A. Baldwin, of Slaton, for appellant.
A. A. Lumpkin, of Amarillo, for appellee.
This suit was filed in the district court of Potter county by the Amarillo National Bank against the Slaton State Bank. From a judgment of that court adverse to it, the Slaton bank has appealed to this court. The parties herein will be styled as in the trial court.
The plaintiff alleged in its petition, substantially, that on or about the 1st of September, 1925, J. K. Wood, who was on that date, prior thereto, and subsequent thereto, the duly authorized vice president of the defendant bank, came to Amarillo and to plaintiff's banking house, bringing with him two certain promissory notes with a view of selling them to the plaintiff, or making some arrangement with plaintiff by which the defendant bank might procure money on or for the notes, and, while in plaintiff's bank in Amarillo, the said J. K. Wood, active vice president of defendant bank as aforesaid and at the time acting for and on behalf of the defendant bank, as its duly authorized officer and agent in said transaction, proposed to sell the said two notes, which belonged to the defendant bank, to plaintiff under an agreement to repurchase same on stated dates, or to take said notes up, authorizing plaintiff to charge said notes to the account of the defendant on the repurchase dates mentioned, if the defendant should have funds on deposit with plaintiff bank on said repurchase dates, sufficient to take care of said two notes and, if not, the defendant agreed to take up said two notes upon request made by plaintiff; that said proposition so made by said J. K. Wood, as active vice president and duly authorized agent of the defendant bank, was in writing, and substantially as follows:
Plaintiff further alleged that the written proposition so made by the defendant, through its active vice president and agent, J. K. Wood, as above set out, was duly considered by the plaintiff, and by it accepted, and thereupon the said two notes referred to and described in said written proposition of September 1, 1925, were delivered by said J. K. Wood to plaintiff; that is to say, one note in the principal sum of $5,500 dated at Slaton, Tex., August 15, 1925, signed by W. A. Wood, and indorsed in blank by W. A. Wood and J. K. Wood, and also indorsed without recourse by the Slaton State Bank, said indorsement of the Slaton State Bank being made by J. K. Wood. its vice president, payable 90 days after date, and payable to the order of W. A. Wood, the signer thereof, at the Slaton State Bank, in the town of Slaton, Lubbock county, Tex., with interest from maturity at the rate of 10 per cent. per annum, and providing, if said notes should not be paid at maturity, and should be placed in the hands of an attorney for collection, or if suit thereon should be had, or collected through a probate court, 10 per cent. additional on the amount due thereon should be paid as attorney's fees, the makers, signers, indorsers and guarantors of said note severally waiving presentment for payment, demand, notice, etc., and waiving diligence in bringing suit, and agreeing to all extensions, etc.; and one other note, whch is known as the Anton note, and which is not further described, because same was taken up in accordance with the provisions of the written repurchase agreement.
The plaintiff further alleges that said written proposition was accepted by it, and the two notes were indorsed to it for a valuable consideration paid by plaintiff, to wit, the sum of $9,900.41, which said sum represented the full value of said two notes, less $99.50 interest, which was deducted from the face value thereof, and the defendant was given credit on the books of the plaintiff for said sum of $9,900.41, which defendant has by check and otherwise withdrawn from plaintiff bank.
Plaintiff further alleges the payment of the Anton note, and eliminates it from the case; that the said Wood note was not paid, although demanded of defendant, to plaintiff's damage, $6,500; that defendant was bound and obligated by said repurchase agreement to pay plaintiff the full value of said Wood note; that defendant had no funds with plaintiff on November 1, 1925, nor at any time subsequent thereto, out of which said Wood note could be paid, or which said note could be charged against.
Plaintiff's petition closes with the following prayer for relief:
"Wherefore, premises considered, plaintiff prays for citation and service thereof on the defendant in terms of law, and that, upon final hearing hereof, plaintiff have and recover judgment against the defendant for a sum of money equal to the amount due upon said $5,500 note, including principal, interest and attorney's fees, in accordance with the terms and provisions thereof, for costs of suit, and for general and special, legal and equitable, relief."
Defendant filed its plea of privilege to be sued in the county of its legal residence, Lubbock county, Tex.
Plaintiff filed its controverting affidavit, and defendant filed answer thereto. Defendant's answer to the merits contains general and special exceptions, general denial, and plea of non est factum. No question arises on the sufficiency of the plea of privilege.
We are confronted with 32 propositions, based upon 19 assignments of error, which are presented in the appellant's brief. We cannot possibly spare the time or space considering each in the order in which they come, but we will discuss such questions only as we think are material to the disposition of the appeal in this case.
As stated, in reply to defendant's plea of privilege, the plaintiff has filed its controverting affidavit, in which it contends, the defendant being a corporation, that this suit was based upon a written contract, as alleged in plaintiff's petition, by the terms of which the defendant agreed to repurchase the notes therein mentioned, referred to and made a part of the controverting affidavit; that by virtue of and under article 1995, subd. 23, of the Revised Civil Statutes 1925, it is provided that "suits against a private corporation, association or joint stock company may be brought in any county in which the cause of action, or a part thereof, arose," and that the contract alleged in plaintiff's petition, executed by the defendant, was made by the defendant in Potter county, Tex., and that by reason thereof the venue of the cause is properly laid in Potter county; that the allegation in defendant's plea of privilege that none of the exceptions to the exclusive venue in the county of one's residence, mentioned in the statutes, is untrue.
Upon the trial of the issues involved and presented under the plea of privilege and the controverting affidavit, the following facts were established by the evidence, and such evidence, by agreement of counsel, was also considered by the trial judge in his hearing on the merits of the case:
The Slaton bank is a banking corporation, organized under the laws of the state of Texas, with its principal office for the transaction of its business at Slaton, Lubbock county, Tex.; that J. K. Wood was, at the time of the transaction which resulted in the making of the contract sued on, said bank's active vice president, managing its business; that said J. K. Wood owned 175 of the 250 shares of the capital stock of defendant bank; that said Wood went to Amarillo, Tex., and presented to the Amarillo bank the two notes described above, and attempted to sell and discount them to said Amarillo bank; that the Amarillo bank agreed to take the notes on the condition that the Slaton bank would execute and deliver to it the repurchase agreement set out above; that J. K. Wood agreed to this, and did then and there make and deliver to the Amarillo bank the repurchasing agreement sued on in the beginning, in which that bank transacted its business in the city of Amarillo, Potter county, Tex., and turned over to said bank the two notes and repurchase agreement above described.
While the plea of privilege presents a prima facie right of defendant to have the case transferred to Lubbock county, yet, under the allegations of the controverting affidavit, and the proof submitted, the trial court correctly overruled it, for the reason that the evidence clearly and beyond controversy shows that the cause of action arose in Potter county. The proposition was made by Wood and accepted by the bank upon the condition it interposed, and the transaction was fully closed in Potter county. Lakeside Irrigation Co. v. W. C. Hedrick Constr. Co. (Tex. Civ. App.) 230 S. W. 1057; Early-Foster Co. v. A. P. Moore's Sons (Tex. Civ. App.) 230 S. W. 787; Lummus Cotton Gin Sales Co. v. Mills (Tex. Civ. App.) 233 S. W. 126; Sealy...
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Gill v. Universal C. I. T. Credit Corp.
...contracts taken by appellant and assigned to appellee. Mahaney v. Lee, Tex.Civ.App., 171 S.W. 1093. In Slaton State Bank v. Amarillo National Bank, Tex.Civ.App., 288 S.W. 639, 642, which was a suit on a re-purchase agreement executed by the Slaton Bank to the Amarillo Bank as collateral to ......