Western Nat. Bank v. Texas Christian University

• Decision Date: 03 April 1915
• Docket Number: (No. 8126.)
• Citation: 176 S.W. 1194
• Parties: WESTERN NAT. BANK OF FT. WORTH v. TEXAS CHRISTIAN UNIVERSITY et al.
• Court: Texas Court of Appeals

176 S.W. 1194

WESTERN NAT. BANK OF FT. WORTH v. TEXAS CHRISTIAN UNIVERSITY et al.

(No. 8126.)

Court of Civil Appeals of Texas. Ft. Worth.

April 3, 1915.

Rehearing Denied May 8, 1915.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Action by Mitchell-Gartner & Company and another against the Texas Building Company, in which the Texas Christian University was summoned as a garnishee. The garnishee interpleaded the Western National Bank of Ft. Worth and others. From a judgment against the bank, it appeals. Affirmed.

Stephens & Miller, of Ft. Worth, for appellant. Flournoy, Smith & Storer, Capps, Cantey, Hanger & Short, and David B. Trammell, all of Ft. Worth, for appellees.

DUNKLIN, J.

The Texas Building Company erected a building for the Texas Christian University known as "Clark Hall," under a written contract, by the terms of which the owner was to pay to the contractor $56,200. After all of the contract price had been paid with the exception of $5,505.20, writs of garnishment were served upon the university by Mitchell-Gartner & Co. and J. W. Mitchell & Co., judgment creditors of the building company, to subject the balance owing by the university to the payment of the judgments. In its answer to the writ, the garnishee alleged the building contract, the balance due thereon shown above, and interpleaded the Western National Bank of Ft. Worth, together with numerous individuals and firms who held claims against the contractor for labor and material furnished in the construction of the building. Prior to the service of the writs of garnishment, the university had deposited in the bank named the sum of $4,561 for the purpose of applying the same to the payment of the unpaid balance of the contract price for the building whenever the building should be finished. As a basis for interpleading the bank, the garnishee alleged that $3,100 of the amount which they had so deposited had been wrongfully applied by the bank to the payment of a draft drawn by the building company upon the university, which draft the company had never accepted. It was further alleged that the university had never in any manner agreed to the appropriation so made by the bank, and garnishee prayed for a determination of the issue whether or not the act of the bank in so appropriating said credit was rightful. In effect, this plea was that, if the payment of $3,100 so made by the bank constituted a proper debit against the university under the building contract, then the garnishee was entitled to credit therefor as against the building company and all parties having claims for labor and material used in the construction of the building; otherwise, the garnishee was entitled to a judgment against the bank for said sum for the purpose of discharging the unpaid claims for labor and material. The bank excepted to the interpleader against it upon the ground of a misjoinder of parties and causes of action, and also filed a plea of misjoinder. It further pleaded that $3,100 of the amount to the credit of the university in the bank was appropriated to cover the pay roll of the building company for labor performed upon the building in controversy upon the advice of John L. Cassell, one of the building committee of the university with authority to act for the university in the premises; that but for such advancements work upon the building would have ceased and the building would not have been ready for occupancy at the time desired by the university — all of which facts were made known to Cassell before he agreed to such an appropriation and induced him to make such agreement. The other parties interpleaded filed pleas of intervention setting up their claims for labor and material furnished in the construction of the building, and a judgment was rendered in their favor against the university for the aggregate sum of $3,604.39, directing that the same be paid in full out of the amount due by the university, and that the balance remaining of $5,505.20, due on the contract for the building, should be applied to the payment of the garnishing creditors. Judgment was also rendered in favor of the garnishee against the bank for the $3,100 which the bank had appropriated out of the deposit made by the university. From that portion of the judgment last mentioned the bank has appealed.

The trial was by the court without the aid of a jury, and the findings of fact filed by the trial judge have not been assailed. According to those findings, it appears that the building company also kept an account with appellant bank using the fictitious name of "Alvord Special," for the purpose of concealing from its creditors any balance that might be due it. On October 6, 1913, the building company drew a draft on the university in favor of the bank for the sum of $4,000, which the bank accepted and credited to the Alvord Special account on the same day. On October 15, 1913, the bank charged $3,100 of the draft to the account of the university. Between October 6th and October 28th, the building company, by checks on the Alvord Special account, paid the sum of $1,288.46, for material and labor used upon the building in question. On October 25, 1913, the writs of garnishment were served upon the university.

The following are additional findings by the trial judge:

"(8) At the time said draft for $4,000 was made up on October 6, 1913, the Texas Building Company owed no items for labor for the construction of Clark Hall.

"(9) It was from this draft of $4,000, dated October 6, 1913, that the Western National Bank endeavored to appropriate the sum of $3,100, charging it to the account of the Texas Christian University on October 15, 1913.

"(10) The Western National Bank not only paid checks upon the Texas Christian University job, but also paid all checks indiscriminately given by the Texas Building Company on any job out of the account known as `Alvord Special.'

"(11) Said sum of $3,100 was neither appropriated nor used by the Western National Bank exclusively for the payment of pay rolls or other debts...