Pink Front Bankrupt Store v. G. A. Mistrot & Co.

GILL, Chief Justice. — G. A. Mistrot & Co., of Houston, Texas, sued a concern styled the Pink Front Bankrupt Store to recover $231.36 on open account. The defendant admitted the correctness of the account, but pleaded in offset and defense to all of the account, except $69 (which it paid after the institution of this suit), that it had mailed a check to plaintiff in full of the account; that plaintiff received it, but negligently failed to present it to the bank for payment or to return it to defendant within a reasonable time, whereby and on account of the failure of the bank later on, defendant lost the sum of $166.82. The prayer is that this sum be offset against the balance of the claim-of the plaintiff. The court, áfter hearing the proof, instructed a verdict for plaintiffs, and of that instruction the defendant here complains. That the defendant was indebted to the plaintiff in the sum of $231.36 is not disputed. The defendants were" doing business with C. N. Fleager & Co.’s bank at Jacksonville, in Cherokee County. They maintained a deposit there, and had an arrangement with the bank by which an overdraft would be allowed to the extent of $500. Plaintiff’s account was due December 28, 1902, and according to the testimony relied on by appellant the check was mailed at Jacksonville, Texas, on the 27th of December, 1902, and should have reached plaintiffs at Houston on December 28, by due course óf mail. There was evidence tending to show that the bank would have paid the check in full if it had been presented at any time before January 17, 1903, and it is undisputed that on that daj, which was the date of its suspension, the defendant had to its credit there $166.82. Plaintiffs denied that the check had ever reached them, and controverted the allegation that it had ever been issued or mailed, but the defendants’ evidence presents the issue, and it should have been properly submitted to the jury. Appellee’s counsel contend that the evidence does not present the issue, but their objections go rather to its credibility and force than to the question made. Defendant’s general manager testified that he made out the check on December 27, 1902, enclosed it in an envelope with the concern’s return card thereon, addressed it to appellee at Houston and stamped and mailed it. Testimony was adduced to the effect that while it had been the custom of plaintiffs to send statements of their accounts on the first of each month, and while thereafter they sent statements covering other dealings with defendant, they did not send a statement covering this account until after the failure of the bank. This is con [377] troverted, but is immaterial to this appeal, as there was an instructed verdict. To hold that such evidence is sufficient to raise the issue of the receipt of the check by plaintiffs and its acceptance or negligent failure to collect or return it, is not permitting one presumption to be piled upon another, but is simply permitting the establishment of such issues by circumstantial evidence. Shiflet v. Railway Co., 18 Texas Civ. App., 57, 44 S. W. Rep., 918; Washington v. Railway Co., 90 Texas, 320; Railway v. Porter, 73 Texas, 307. Nor was it necessary to show an acceptance or an undertaking to collect and credit. It was enough, to the end that the issue might be presented, to show prima facie that the check reached Mistrot & Co. on or about December 38,1903, and was neither presented nor returned, though the bank continued in business for twenty days thereafter, and the time required for mail communication between the two points was less than a day. Can it be seriously questioned that if defendant’s proof on the point had stood without opposing evidence it would have presented every issue necessary to the establishment of liability on the part of plaintiff? Plaintiff is equally in error in the contention that defendant, by presenting a claim for its deposit to the trustee of the bankrupt bank, waived its claim against plaintiffs. Defendant’s claim against the plaintiffs does not rest upon the theory that the mailing of the check was an assignment pro tanto of the funds in the bank, or that the naked check for any reason operated as a discharge of the account. The fund in the bank belonged to defendants until withdrawn by the presentation of the check, hence they properly filed their claim in bankruptcy. They pleaded in this suit in reconvention for damages which they claim resulted from the failure of plaintiffs to discharge their duty in the matter of the check. Had there been no resultant damage there could be no valid claim. From what has been said it follows that the judgment can not stand. We do not deem it proper to comment upon the facts. For the reasons given, the judgment is reversed and the cause remanded. Reversed and remanded.