"(1) The First National Bank of Longview, defendant, is a national banking corporation, and at all the times named and involved in this suit had and now has its domicile and place of business in Longview in Gregg county, Tex.
"(2) The defendant H. H. Watson at the time he filed his plea of privilege herein and for many years theretofore resided in Gregg county, Tex.; that about the 15th day of June, 1922, after filing said plea, he removed to and became a resident of Dallas county, Tex., where he has continuously since that time resided and now resides, and is not now nor has he ever been a resident of Wise county.
"(3) The defendant H. H. Watson and the plaintiff, Henry Jackson, for a good many years have been engaged in business at Longview and Boyd, Tex., respectively, the former doing a brokerage and other business in buying and selling farm products including peanuts; and the latter in buying and selling farm products.
"(4) After some correspondence between said parties, said Watson in January, 1921, sent his agent J. H. Hays to Boyd, Wise county, Tex., to purchase and ship peanuts under his directions. The said Hays went to Boyd and entered upon said duties and began the purchase of peanuts from farmers, but, before any were bought, Watson not having furnished money or credit with which to pay for same, at Hays' request or upon an understanding between the plaintiff, Jackson, wired defendant Watson at Longview to have his bank wire the Continental State Bank of Boyd guaranteeing payments of drafts on Watson for peanuts purchased and shipped.
"(5) Watson conferred with the First National Bank at Longview, and made arrangements with it, and in pursance thereof, Watson being a customer of that bank, and for many years having done his banking business and having had many similar transactions with and through said bank, on January 19, 1921, wired
said Continental State Bank at Boyd at follows: `Will honor drafts on H. H. Watson one to three cars peanuts original ladings and weight certificates attached at seventy cents.'
"(6) That accordingly three cars of peanuts were bought at Boyd at 70 cents, loaded into cars, and shipped according to defendant Watson's instructions, a draft was drawn therefor and sent and presented to defendant First National Bank at Longview, with bills of lading and weight certificates attached, and said draft was paid by said bank.
"(7) On January 21, 1921, a similar telegram was sent by the First National to said Continental State Bank at Boyd that the former would in like circumstances honor draft on Watson for three cars of peanuts at 70 cents, which three cars of peanuts were in like manner bought and shipped, and the bills of lading and weight certificates therefor were attached to draft on Watson, and said draft was in like manner presented to and paid by said Longview bank.
"(8) That thereafter on January 26, 1921, at Watson's instance, said first National Bank at Longview sent to the Continental State Bank at Boyd, Tex., the following telegram:
"`Contl. State Bank, Boyd, Texas. Will honor draft Henry Jackson on H. H. Watson original ladings and weight certificates attached one or more cars peanuts seventy cents. First Natl. Bank.'
"In pursuance of and in reliance upon said telegram, as it had done in the two instances before, the said Continental Bank advanced the money to the amount of the draft sued on herein and set out below, which covered the price and necessary expenses of two cars of peanuts, and said draft was drawn and sent with the bills of lading and weight certificates attached, all in pursuance of the direction of said telegram, and when same was presented to said Longview bank payment on same was refused.
"(9) The draft referred to in paragraph 8 above is as follows:
"`3 cars peanuts..3,476.64 Continental State Bank
Expense ........ 36.00 Boyd, Texas
Ex. ............ 8.78
_________
$3,521.42 Jan. 27, 1921
"`B/L attached on demand pay to the order of Continental State Bank, Boyd, Texas, $3,521.42, thirty five hundred twenty-one dollars forty-two cents, value received and charge same to account of H. H. Watson, Longview, Texas. c/o First National Bank.
"`H. H. Watson, by Henry Jackson.'
"(10) On February 3, 1921, after the last-named three cars of peanuts had been shipped, and after the bank at Boyd had advanced the money thereon, and the last draft in question had been drawn and sent as aforesaid, the Longview Bank sent to the Continental Bank at Boyd the following telegram:
"`53 collect. Longview, Tex. 4:50 p. m. 2/3.
"`Continental State Bank, Boyd, Texas. Watson draft returned by another bank. Never been in our hands. Send them direct to us and if original ladings and weight certificates are attached as agreed will honor draft but will expect you to guarantee the weights of your parties as weights are being reported short on cars already paid for.
"`First National Bank.'
"(11) When payment of the draft in question was refused and same returned, the plaintiff took said draft to Longview, and presented it in person to said Longview bank, payment was again refused, the only reason given by the bank therefor being that the quality of the peanuts already shipped was poor, and the bank and Watson refused at that time to have anything further to do with said three cars last shipped. Whereupon said Jackson went to Tyler, to which point said two cars had been shipped under Watson's instructions to his agent Hays at Boyd, and caused said peanuts to be sold, and there was realized therefrom net, $647.35, which sum was applied to the draft, and the balance due on said draft forms the basis of this suit.
"(12) That when said last three cars of peanuts were being bought and loaded it was raining, and in consequence they were made wet, and when they arrived at their destination and were unloaded they were in a badly damaged condition, the kernels being mildewed in consequence of their having become wet while being bought and unloaded from farm wagons, and Henry Jackson in handling same after they had been refused and in reselling them acted with due diligence and prudence, and got for them the best price obtainable under the circumstances.
"(13) All the peanuts involved in these transactions were sound and of good quality when purchased and loaded into the cars, and the damaged condition of the last three cars was due to the negligence of defendant Watson's agent Hays in having said peanuts loaded into the cars and shipped while wet, for which neither the plaintiff, Jackson, or the bank at Boyd were in no wise responsible.
"(14) Neither the plaintiff or the bank at Boyd had any direct pecuniary interest in the peanuts or the sale thereof, other than a general interest in seeing the farmers of the community find a market for their products, and out of the proceeds of the sales so made some of the debts due the bank and Jackson by farmers were paid.
"(15) I find that Hays was the agent of defendant Watson in buying and shipping said peanuts, and that neither the bank nor Jackson was such agent or had anything to do in that matter, nor did they or either of them in any manner conspire with Hays nor did they do any wrongful or improper thing or act in the premises, or any act with the purpose or that had the effect of injuring either of the defendants.
"(16) I find that plaintiff, Jackson, was the public weigher at Boyd, and that as such he weighed the peanuts in question on his public scales and gave certificates of the weights of the several loads as was usual and customary and as was his duty to do, and that he received therefor the proper and customary weighing fees.
"(17) That before any peanuts were bought for a shipment the telegram from the Longview to the Boyd bank relating thereto would be in the hands of the Boyd bank, and the plaintiff, either at the request of Watson or of Hays, Watson not having provided funds with which to purchase, would draw checks on said Boyd bank in Watson's name with which to pay the farmers for the peanuts, and give same to the farmers, and upon presentation of
same with the weight certificates the bank would pay the checks. After sufficient had been bought to complete a shipment, bills of lading therefor would be procured, which, together with the weight certificates, would be attached to a draft on Watson to cover the shipment and then would be sent for payment to the defendant bank. Before paying out any money in this way, the bank at Boyd required the plaintiff...
