Traders' Nat. Bank v. Cresson

• Decision Date: 03 December 1889
• Citation: 12 S.W. 819
• Parties: TRADERS' NAT. BANK <I>v.</I> CRESSON.
• Court: Texas Supreme Court

12 S.W. 819

TRADERS' NAT. BANKv.

CRESSON.

Supreme Court of Texas.

December 3, 1889.

Commissioners' decision. Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

Simpson & James, for appellant. Tarleton & Kellar, for appellee.

HOBBY, J.

C. C. Cresson, administrator of the estate of Charles H. Nash, deceased, sued the Traders' National Bank of San Antonio to recover $1,548.91, amount to the credit of said Nash on the books of said bank, it being the balance of a deposit made in said bank by Nash during his life-time, and which balance was held by the bank, to his credit, at his death. The bank answered that during the life-time of Charles H. Nash, and up to the time of his death, he was a depositor at said bank, and at the time of his said death had a balance to his credit of $1,548.91; and, further, that the bank, "at the time of the death of said C. H. Nash, held a note of the said C. H. Nash dated February 8, 1884, in the sum of $14,412.12, payable to the order of C. T. Parker four years after date, with eight per cent. per annum from its date, said interest payable on or before November 15, 1884, 1885, 1886, and at maturity; that said note was duly indorsed by the payee, Charles T. Parker, to this defendant, for valuable consideration, and was at the death of Charles H. Nash, and is now, held by defendant." The cause coming on for trial without a jury, thereupon the court, having heard the defendant's answer, read upon his (the court's) own motion, held that the facts stated by defendant in his answer constituted no defense; and, the defendant refusing to amend, the court gave judgment for plaintiff, the court ruling that the principle of set-off did not apply with reference to estates of deceased persons, and that any claim which defendant had against plaintiff must be propounded and enforced in the probate court, to which the counsel for defendant objected, for the reason that "the set-off pleaded by defendant was a complete answer to plaintiff's demand, and a valid defense in this action."

The first assignment is that the court erred in declaring the facts set up in the amended original answer were no defense to plaintiff's claim. Second. The court erred in rendering judgment upon the facts, as shown by the petition and answer. Third. The court erred in ruling that the principle of set-off does not apply, between banker and depositor, upon the death of the latter. Fourth. The court erred in ruling that the bank could not...