W. T. Wilson Grain Co. v. Central Nat. Bank

• Decision Date: 24 June 1911
• Citation: 139 S.W. 996
• Parties: W. T. WILSON GRAIN CO. v. CENTRAL NAT. BANK.
• Court: Texas Court of Appeals

139 S.W. 996

W. T. WILSON GRAIN CO. v. CENTRAL NAT. BANK.

Court of Civil Appeals of Texas. Galveston.

June 24, 1911.

Rehearing Denied October 5, 1911.

Appeal from District Court, Nacogdoches County: James I. Perkins, Judge.

Action by the W. T. Wilson Grain Company against the Central National Bank. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

June C. Harris, for appellant. Ingraham & Hodges, for appellee.

PLEASANTS, C. J.

This is an action brought under the statute for the trial of the right of property. The cause was tried in the court below upon the following agreed statement:

"First. It is agreed that the W. T. Wilson Grain Company is a copartnership, composed of W. T. Wilson and B. T. Wilson, both of whom reside in Nacogdoches county, Tex., and that the Bartlett Commission Company is a copartnership, composed of C. W. Bartlett and E. L. Bartlett, both of whom reside in St. Louis, Mo.

"Second. That before the 12th day of March, 1909, the Wilson Grain Company of Nacogdoches, Tex., ordered from the Bartlett Commission Company one car load of oats to be shipped to W. T. Wilson Grain Company at Nacogdoches, Tex., from St. Louis, Mo.

"Third. That on the 12th day of March, 1909, the Bartlett Commission Company filled said order by loading car No. 133798 Missouri, Kansas & Texas Railway Company with oats at the elevator of the Bartlett Commission Company in St. Louis, Mo., and said car of oats was consigned to the order of Bartlett Commission Company and to the place of destination at Nacogdoches, Tex., and by the way of Shreveport, the car initial being `Som,' and the said Missouri, Kansas & Texas Railway Company issued and delivered to the Bartlett Commission Company its bill of lading therefor, dated the 12th day of March, and stamped the 13th day of March, 1909, with instructions as above stated as to where and to whose order the car of oats were to be shipped. Said bill of lading also contained an instruction to notify the W. T. Wilson Grain Company.

"Fourth. That on the 13th day of March, 1909, the said Bartlett Commission Company drew their draft in favor of the Central National Bank for the sum of $907.74 on the W. T. Wilson Grain Company for said car of oats which were No. 2 clip white oats and shipped in car No. 133798 of the Missouri, Kansas & Texas Railway Company, and attached said draft to the bill of lading above described.

"Fifth. That the Central National Bank is a banking corporation created under the laws of the United States and doing business in St. Louis, Mo.

"Sixth. That said Central National Bank in due course of mail forwarded said check with the bill of lading attached to its correspondent at Nacogdoches, Tex., for immediate collection of and from the W. T. Grain Company.

"Seventh. That said car of oats No. 133798 arrived safely at Nacogdoches, Tex., and so did the draft of the Bartlett Commission Company in favor of the Central National Bank on the W. T. Wilson Grain Company with the bill of lading attached thereto. That on the 20th day of March, 1909, the W. T. Wilson Grain Company filed its suit in the district court of Nacogdoches, Tex., against the Bartlett Commission Company for a claimed indebtedness of $1,033.93, and on the same day in said cause filed an affidavit for an attachment, and also proper bond, and on said day of March 20, 1909, procured to be issued in said cause a writ of attachment and placed the same in the hands of the sheriff of Nacogdoches county, and said sheriff at 10:15 o'clock of March 20, 1909, levied said writ upon the said car of oats, being No. 133798, and took possession of them under and by virtue of said writ, and on March 22d, the said W. T. Wilson Grain Company and the said sheriff joined in an application to sell said car of oats and got an order to sell them on the 27th day of March, 1909, but the same was not sold.

"Eighth. And on March 27, 1909, the said Central National Bank, acting by its attorneys, Ingraham, Middlebrook & Hodges, filed an affidavit claiming said car of oats as its property, and it claimed said car of oats in good faith at the same time presented said affidavit to the sheriff of Nacogdoches county (who then had corporal possession of said car of oats) together with its claimants bond in the sum of $1,900 signed by said Central National Bank as principal, and the Commercial National Bank of Nacogdoches, Geo. C. Ingraham, and Frank Sharp Jr., as sureties, in the sum of $1,900; the sheriff having valued said oats at $907.74.

"Ninth. And on the said 27th day of March the said sheriff received said affidavit and bond and delivered the said car of oats to the Central National Bank and returned the affidavit and bond to the Central National Bank together with the writ of attachment that issued in the case of the W. T. Wilson Grain Company against the Bartlett Commission Company; the said sheriff approving the bond aforesaid.

"Tenth. That a judgment has been rendered in case of W. T. Wilson Grain Company v. Bartlett Commission Company by default with a writ of inquiry which has been perfected, and foreclosing the attachment lien upon the car of oats subject to judgment rendered in this cause."

It was further agreed that these facts might be supplemented by the facts disclosed in the depositions of the witnesses Zimmerman, Miller, and Foreman, which had been taken and filed in the cause by the appellee. Zimmerman testified, in substance, that he was a clerk in the employment of the Bartlett Commission Company and in that capacity he deposited the draft in question with the appellee bank on March 13, 1909. His statement of the transaction is as follows: "On March 13th I went to the Central National Bank to make my daily deposit. In that deposit there was a draft in the sum of $907.74, payable to the order of the Central National Bank, drawn by the Bartlett Commission Company on W. T. Wilson, at Nacogdoches, Tex. To that draft was attached an original bill of lading which has been attached to the deposition of Hamilton M. Foreman and has been marked `Defendant's Exhibit A.' Said bill of lading bore the indorsement of the Bartlett Commission Company by P. L. Zimmerman, Secy., as found on the reverse of said Exhibit A, and the bank credited the Bartlett Commission Company as a cash deposit in the amount equivalent to the sum of the draft less the usual discount. The bank book presented and marked `Defendant's Exhibit D' in connection with the deposition of Hamilton M. Foreman is the original bank book, and the deposit on March 13th is found on page 20 of the deposit book on line 7, being in the sum of $1,558.46, which deposit was made up of four items, as is shown by defendant's Exhibit C, attached to Hamilton M. Foreman's deposition, which is the original deposit slip concerning which I am testifying." He also identified the original bill of lading described in the agreed statement of facts and a copy of the original draft.

Miller testified that he was bill of lading clerk for the appellee bank at the time the draft was discounted by the bank, and that the draft and bill of lading passed through his hands; that the draft was discounted and not taken for collection.

Foreman, after stating that he was receiving teller for the appellee bank, testified as follows: "On March 13, 1909, the ...