Adoue & Lobit v. Blum

PLEASANTS, Associate Justice. The question presented by this appeal for our decision is whether or not the defendant in error should, under a contract between him and the plaintiffs in error, recover of the latter one-half of a sum of money found on deposit in a New York bank to the credit of one J. Weiss, and which was paid out to said plaintiffs upon their obligation to the bank to protect it against Weiss. The facts, as we deduce them from the record, are as follows: J. Weiss was a resident of Texarkana in September, 1889, and was doing business under several firm names, and among others that of “ The Texarkana Savings Bank.” He was indebted by note to Sylvain Blum in the sum of $9000, and was also largely indebted to Adoue & Lobit. On the 20th of September, 1889, Blum and Adoue & Lobit agreed that whatever sums of money either should collect from the common debtor, the said Weiss, should be for their joint account, Blum to have one-half and Adoue & Lobit the other. Blum, for some reason, did not desire to appear in any legal proceedings which it might be necessary to institute, and transferred his claim of $9000 to Adoue & Lobit. Blum discovering that there was on deposit in the Merchants Exchange National Bank of New York, to the credit of Weiss, the sum of $1584.05, gave this information to Adoue & Lobit, and the latter instituted suit against the bank for the purpose of subjecting the funds to the payment pro tanto of their debt and that of Blum’s. The suit was afterwards dismissed, and by an agreement between the plaintiffs, Adoue & Lobit, and the bank, the money held by the latter on account of Weiss was turned over to Adoue & Lobit, upon their executing an indemnifying bond to the bank. Adoue & Lobit refusing to divide the money so received with Blum, he instituted suit against them for the recovery of one-half of $1584.05, less attorney fees and costs of the suit instituted by Adoue & Lobit against the bank. On August 30, 1889, twenty-one days before the agreement between Blum and Adoue & Lobit was made, Weiss wired the Merchants Exchange Bank as follows: “ Sell all bonds and remit balance due me to Adoue & Lobit, Galveston, Texas.” On the 6th of September the bank wrote to Weiss as follows: “ New York, September 6, 1889. “ J. Weiss, Esq., President, Texarkana, Texas: “ Dear Sir — Our broker has at last succeeded in selling the San Antonio & Aransas Pass Railroad bonds, in accordance with your instructions. *289 8000 S. A. & A. P. 1st 6’s, 1916, at 80................... .$6,400 00 Broker’s commission.................................... 10 00 $6,390 00 Your note of............................. .$5,000 00 Less payment............................. 194 05— 4,805 95 Balance.... .$1,584 05 which has been credited to your account, and I return notes herein, can-celled. “Very respectfully, “A. P. Apgar.” This letter was delivered by Blum to Adoue & Lobit prior to the institution of their suit against the bank. When they contracted with Blum for a division of any sums they might recover from Weiss, Adoue & Lobit do not seem to have known that there was any sum in said bank to Weiss’ credit. On August 30, 1889, Weiss wired them from Texarkana as follows: “ Protect drafts; have ordered remittance from New York.” But no remittance was made them, nor does it appear that any communication was had by Adoue & Lobit with Weiss subsequent to receipt of his telegram of August 30, 1889, or that the bank made any communication to them touching the subject matter of litigation prior to the institution of the suit against the bank. Nor does it appear from the evidence why the bank retained the balance due to Weiss, instead of transmitting the same, as he' directed them to do, to Adoue & Lobit. Upon trial of the cause the District Court of Galveston County rendered judgment, in accordance with the prayer of his petition, for plaintiff Blum, and the defendants, Adoue & Lobit, appealed. The defendants denied the plaintiff’s right to any portion of the sum received by them from the New York bank, upon the ground that at and before the agreement between them and Blum the money on deposit in the bank had been assigned and transferred to them. The District Court held that the mere instructions given to the bank to transmit the balance due him to Adoue & Lobit, and the telegram of the same date as the instructions from Weiss to Adoue & Lobit, did not constitute either a legal or equitable assignment of the funds to Adoue & Lobit; and in this we fully concur. We think this question is settled by the decision rendered by the Supreme Court of this State in the case of Wallis, Landes & Co. v. Taylor, 67 Texas, 431. The judgment of the same court in its recent decision in Austin, in the case of the Alliance Milling Company v. Eaton, Guinan & Co., 86 Texas, 401, is to the same effect. The funds in the bank at the time of the institution of Adoue & *290 Lobit’s suit were subject to the control of Weiss, and were therefore subject to garnishment at the suit of Blum, or any other creditor of Weiss. Delivered February 15, 1894. There is no error in the judgment, and the same is affirmed. Affirmed.