Townsend, Oldham & Co. v. Continental State Bank

• Decision Date: 29 May 1915
• Docket Number: (No. 8206.)
• Citation: 178 S.W. 564
• Parties: TOWNSEND, OLDHAM & CO. v. CONTINENTAL STATE BANK OF GORMAN.
• Court: Texas Court of Appeals

178 S.W. 564

TOWNSEND, OLDHAM & CO. v. CONTINENTAL STATE BANK OF GORMAN.

(No. 8206.)

Court of Civil Appeals of Texas. Ft. Worth.

May 29, 1915.

Rehearing Denied July 3, 1915.

Appeal from Eastland County Court; E. A. Hill, Judge.

Action by Townsend, Oldham & Co. against the Continental State Bank of Gorman. From a judgment for defendant, plaintiff appeals. Affirmed.

J. R. Stubblefield, of Eastland, and S. W. Bishop, of Gorman, for appellant. J. B. McIntire, of Gorman, for appellee.

BUCK, J.

On November 12, 1913, an unknown man came into the store of Townsend, Oldham & Co. of Gorman, Tex., and presented a warehouse certificate for three bales of cotton, which cotton was purchased by Townsend, Oldham & Co., who gave their check on the Continental State Bank of Gorman in payment thereof in the sum of $199.10, payable to J. F. McClinton, or order. This check was presented to the said bank by the person to whom it was in fact given, and paid by said bank, the person presenting same indorsing thereon the name of J. F. Clinton. The bank charged said amount to the account of Townsend, Oldham & Co., they having on deposit an amount in excess of the sum named in said check. It later developed that the cotton for which said warehouse certificate had been given had been stolen, two bales from A. C. Hill and the other from S. M. Fowler. The owners brought suit for possession thereof, and secured the same by writs of sequestration, but Townsend, Oldham & Co. replevied, and upon a suit between the latter as defendant and the owners as plaintiff, the plaintiff secured judgment in the justice court, and the defendant appealed to the county court. Townsend, Oldham & Co. then, on March 17, 1914, filed suit in the justice court against the Continental State Bank, alleging that the check given to J. F. McClinton was paid without indorsement of the payee named therein, but upon a forged indorsement, and that said bank was negligent in paying the check without the proper indorsement, and prayed for recovery of the amount of said check. The bank expressly denied negligence, and denied that it paid the check without requiring the indorsement of the payee named therein, and denied that the drawer had suffered loss thereby, and further alleged that the drawer had received a value consideration for said check, and was, therefore, estopped from recovering from defendant, etc. Apparently to meet this last given answer and plea, plaintiff, during the trial of this case, and under the advice of its attorney, filed in the county clerk's office, and with the papers of the two cases filed by the owners of the cotton, checks covering the amounts due them.

While the two names under which the unknown and elusive purloiner of the three bales of cotton was masquerading are given and spelt indifferently in the statement of facts, the pleadings, and the briefs as "Clenton" and "Clinton," "McClenton" and "McClinton," we have considered that the variance as to the vowel was not intentional on the part of the pleader or the witness, but was merely a typographical or clerical error, and that the only differences in the names so used was as to the presence or lack of the prefix "Mc."

This case was submitted on special issues and in answer thereto the jury found:

(1) That the defendant paid the amount of the check to the same person to whom the check was given.

(2) That the bank was negligent in cashing the check to the person to whom the proceeds were paid.

(3) That the name of the payee in the check and the name indorsed on the back of the check were not the same.

(4) That plaintiff did not authorize the bank to pay the check to J. F. Clinton.

(5) That plaintiff had deposited the value of the cotton with the county clerk for Hill and Fowler.

(6) That the name J. F. Clinton indorsed on the check was a fictitious name.

(7) That the person who indorsed the check was the same person to whom it was given.

(8) That the plaintiff, Townsend, Oldham & Co., sold the cotton for which the check was given, and received the proceeds of sale.

(9) That plaintiff had not been compelled to part with the proceeds of the sale of cotton.

(10) That the man to whom the check was given and the man who indorsed the check were one and the same person.

(11) That plaintiff had not paid to Fowler and Hill the value of said cotton in money.

Upon these answers of the jury, the court entered judgment for the defendant bank, and the plaintiff appeals.

No attack is made by appellant upon the verdict, but the contention is made that the same does not sustain the judgment rendered. It is urged that had not the bank been negligent in paying the check upon the indorsement of a name different from that of the payee in the check, the fraudulent character of the thief's possession of the cotton would have been discovered, and the fact that the holder of the check, who presented it to the bank, had no...