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Rhodes v. Austin, Banking Com'r.
PANNILL, C. J. This is a companion case to the case of Austin v. Connellee, 292 S. W. 613, by this court, except in the instant case the question as to whether the amount deposited with the Eirst State Bank of East-land by the various stockholders of said bank was a trust fund was submitted to the jury as a question of fact, and answered by the jury in effect that the amount deposited by the stockholder in this case was not deposited under an agreement between T. L. Overby, the alleged trustee, and the commissioner of banking that the sum should be held until the Eirst State Bank of Eastland should be closed by the commissioner of banking, and then used to pay an assessment of 100 per cent, upon the stock, and that the amount paid was not done in reliance upon any representation by the said Overby, the alleged trustee, that the amount deposited would be held as a trust fund.
The only assignments presented are that the verdict of the jury is against the great weight and preponder-anee of the testimony. The testimony introduced is the same in substance as that reviewed by this court in Austin v. Connellee, supra, which testimony was held in that case to not even raise the issue that the amount placed with the bank by the stockholders under the agreement set forth in the opinion would be held in trust and constitute a trust fund.
Having so held, it must follow that the jury’s finding of fact to the same effect as the decision noted above must be upheld. In addition to this, at the time said agreement with reference to an assessment by the stockholders, as fully set out in Austin v. Connellee, supra, was made, the stock in question was owned by one D. B. Duff, and Duff placed the amount of $1,000 with said Eirst State Bank of Eastland under the agreement with the commissioner a:bove referred to.
Subsequent to that time Duff transferred his stock to the appellant, Rhodes. There is neither pleading nor evidence that Duff transferred any claim which he had against the Eirst State Bank or the commissioner to appellant. Consequently, no right of set-off could possibly be held to be in appellant for a claim which he did not own, which was neither transferred nor assigned to him. Therefore the judgment of the trial court must be affirmed, and it is so ordered.