Guaranty State Bank of Carthage v. Hull

LEVY, J. '(after stating the facts as above). The first assignment, as does the second, predicates error upon the court’s overruling certain special exceptions to the appellee’s answer. The answer by intendment, and in legal effect, fully and sufficiently, as against the exceptions urged, pleads payment of the debt sued for to the president of the bank as such and having authority to collect the debt and receive for the bank such payment. The third assignment and those following challenge the credit of $2,165.81 upon the overdraft indebtedness sued on by appellant. It appears from the evidence that by prearrangement appellee drew various overdrafts on, and the same were paid by, appellant bank. And, according to appellee’s admission, his indebtedness in March, 1912, to the bank by overdrafts, including interest, of $5,165.81 is correct. On March 18 or 19, 1912, there was placed in the bank to ap-pellee’s credit, through R. E. Trabue, president of the bank, the sum of $3,000 cash, which appellant bank admits was used and applied by it at the time in reduction of the amount of the overdraft indebtedness. And the point of difference in this suit between the parties is concerning the further amount of payment on the overdrafts claimed to have been made by appellee on March 18 or 19, 1912. The court made the finding of fact, appearing in the record, that there was owing the bank $5,165.S1 on overdrafts by appellee, and that R. E. Trabue, while president of the bank, collected such amount in cotton from appellee, and agreed to give him credit at the bank for such amount so collected, and that Trabue did give him credit for $3,000 of this amount, but failed to give him credit for the other $2,165.81, as should have been done. In order to determine whether the findings of the court are warranted by the evidence, it is undertaken to state what we conclude are the salient facts bearing upon the issue, and it would serve no purpose to make further statement from the record. It appears that R. E. Trabue was the active president of the appellant bank, and had been for several years, and continued to be until June 1, 1912, when he sold his stock and resigned the presidency. He was also a merchant, and in his merchandise business bought cotton generally from the public. Appellee says he owed Tra-bue a store account of $325, less a credit of $250. Trabue owed appellee a personal indebtedness of something over $12,000, satisfactorily arranged between them. At the time the overdraft indebtedness to the bank was due and owing, the appellee was the owner of 128 bales of cotton raised on his farm, and of the aggregate weight, according to the weigher’s receipts, of 63,573 pounds. On March 18 or 19, 1912, R. E. Trabue came to appellee’s farm with the purpose of purchasing the cotton. According to the testimony of appellee, a sale of the cotton was effectuated upon the occasion, at the agreed price of 11 cents a pound upon the total weight mentioned, aggregating in amount $6,993.03, under the agreed terms and conditions that Mr. Trabue would deduct from the purchase price the sum of $5,165.81, and take and receive this amount and credit it in the appellant bank to his overdraft indebtedness. Appellee particularly says that Mr. Trabue put down on a piece of paper the weights of the cotton and the agreed price, and arrived at the total price of the cotton, and then [106] “gave me a little book” which “showed $5,-105.81 overdraft,” and then from the purchase price of the cotton deducted the $5,-165.81, together with the account “that I would be owing him in the store.” The inference from the evidence is that the “little book” which Mr. Trabue handed appellee was the passbook of appellee at the bank. Trabue received and took the cotton under this agreement. Appellee further says that he was dealing at the time, in respect to the cotton, with R. E. Trabue as president of the bank, and with the purpose and intention of paying off the overdrafts to the bank, and, “but for the fact that Mr. Trabue was president of the bank, or an officer of the bank, I would not have sold him the cotton on time. I never sold anybody cotton on time except Trabue for the bank. X wouldn’t have let him had that cotton except he promised that he would put that money to my credit in the bank. Except that I was dealing with him as president of the bank, and that he was to put the money to my credit, I wouldn’t have let him had the cotton.” It appears in this connection that appellee and Trabue at the time, of the cotton transaction also undertook to adjust the personal indebtedness of Trabue, amounting to some $12,000, by having Trabue execute a note for about $14,000, which amount consisted of the $12,000, and interest thereon, and the difference between $5,165.81 deducted from the cotton and the total price agreed upon for the 128 bales of cotton. Trabue secured this note with two policies of life insurance. After receiving the 12S bales of cotton, Tra-bue reduced it to money, and placed only $3,000 of the purchase price to appellee’s credit in the bank in reduction of the overdrafts. After ascertaining that Mr. Trabue had only placed $3,000 to his credit, the ap-pellee went to the bank and informed Mr. Wooten, an officer of the bank, and Mr. Biggs, the cashier, concerning the 128 bales of cotton transaction with Trabue, and insisted that he had thus paid to the bank the overdrafts with the cotton, and that credit in full should be given him. The cashier admits that appellee came to the bank and stated the facts and insisted on having paid the overdraft. Mr. Trabue testified for the bank, admitting that he had taken and received the 128 bales of cotton from appellee and reduced them to cash, and that the weight and price stated by appellee was correct, and that he and appellee agreed to deduct and did deduct from the purchase price payable to him the amount of $5,165.81, and that appellee “asked me to pay it to the bank for .him, and I agreed to pay it to the bank, and I agreed to put it in the bank, and I only put $3,600 in the bank for him.” And the only difference between the testimony of Mr. Trabue and appellee in relation to the 128 bales of cotton and the agreements and understanding at the time concerning the same was that Mr. Trabue asserted that he was acting in his individual capacity, and not as president of the bank for the bank. It is not' believed that from the record this court would be wárranted in setting aside the findings of fact made by the court, as being' without any evidence to support the same. The conduct of appellee and Mr. Trabue in relation to their dealing about the 128 bales of cotton makes it quite evident that appellee was surrendering his cotton, and Mr.'Trabue was taking and receiving the same, with the sole intention and Purpose of using and applying the bulk of the proceeds arising from the sale of the cotton to pay and satisfy the overdraft indebtedness to the bank, which was then, as known to both parties, due and payable. And, if force be given to the admission of Mr. Trabue, as must be done, that in the deal about the cotton it was agreed to deduct, and there was deducted at the time, the amount of $5,165.81 from the agreed price therefor of $6,993.03, in order “to put in the bank” and “to pay it to the bank” for him, there would be supported the conclusion, as made by the court, that Mr. Trabue was undertaking, in his capacity as president, to collect and receive payment for the bank on the entire overdraft indebtedness to the bank. Mr. Trabue at the tiriie had, according to the inference from the record, the ap-pellee’s passbook showing his indebtedness to the bank, and in the deal for the cotton used the statement thereon for' deducting from the agreed price the bank’s debt, and agreed to take that amount and put it, as testified to by appellee, to appellee’s “credit at the bank.” Such state of facts, in connection with the further fact that Mr. Tra-bue did, as he admits, put $3,000 of the amount to appellee’s credit on the debt at the bank, makes inconsistent any intention and purpose on Mr. Trab'ue’s part of not acting officially for the bank. Going to appel-lee’s farm to deal about his cotton, armed with appellee’s passbook, and dealing expressly about the bank’s debt, would tend to show the purpose of acting officially for the bank. And agreement to give “credit at the bank” on a debt involves the intention and purpose of acting as an officer of the bank; for only an officer would be authorized to make entries on the books of the bank. Taking the court’s findings as the facts, as we do, it would follow that the credit allowed appel-lee by the court was properly done. In the case of Bank v. Emery, 78 Tex. 598, 15 S. W. 23, after applying the principle that a president of. a bank has authority by virtue of his office to collect or compromise debts of the bank, and to take personal property in furtherance of the payment of the debt, it was remarked: “We know of no reason why a national bank corporation may not, for the purpose of collecting a uebt due it from a creditor, otherwise unable to pay the debt, have such transactions as occurred [107] in this case. At any rate, having had them, and received the property, it cannot, while enjoying the fruits of the transaction, be absolved from the performance of its obligations to others assumed by its officers as a means of getting possession of the property, on the plea that its acts were ultra vires.” And this principle has been numerously applied in the reported cases. Here, according to the facts found by the court, $3,000 of the amount collected in cotton by appellant’s president was used and applied to the debt, and, after knowledge of the facts, such amount was still held and continued as a credit by the bank. Appellant, by enjoying the fruit and benefit of a part of the amount after knowledge of the facts of the transaction, and insisting upon the same, is not in a position to oppose a credit for the balance of the same transaction. Appellee’s cross-assignment does not appear to have been filed with the clerk of the trial court in accordance with rule 101 for district and county courts (159 S. W. xi), and it is therefore not considered. The judgment is affirmed.