Barreda v. Milmo Nat. Bank

FLY, G. J. This suit was instituted by Porfiria G. de Barreda, joined by her husband, .0. Barreda, against the Milmo National Bank, alleging that many years ago Porfirira G. de Barreda had deposited, out of her separate funds and estate, 16,000 Mexican silver dollars in said bank, and had received a certificate of deposit therefor, and the same was renewed from time to time; that on March 7, 1911, the bank had given her a certificate of deposit of the sum named, reciting that it was Mexican dollars, payable to her order in current funds six months after date, with 5 per cent, interest if left for six months or longer on deposit in said hank. Refusal of payment was alleged, and in another count it was pleaded that, if Mrs. Barreda was not entitled to recover the full sum of $16,000 in current money of the United States of America, then she was entitled to recover the sum of 50 cents on the dollar of said sum, which was the value of the Mexican silver dollars when the certificate of deposit in 1911 was given, and they had been worth that ever since that sum was first depositéd. It was also alleged that no interest had been paid on the deposit since January 1, 1918, wherefore appellants sought to recover $8,000 in current funds of the United States, with interest thereon at 6 per cent, per annum from January 7, 1918. It was answered by appellee that when the certificate of deposit sued on was issued and ever since the money had been on deposit the custom prevailed that certificates of deposit for “Mexican money” or “Mexican dollars” meant the same bank notes and currency which were acceptable as Mexican current funds, and which was the only Mexican money generally in circulation at Laredo, Tex., and which was the kind of Mexican money deposited with appellee. That the certificates of deposit given from time to time were accepted in full contemplation of the usage and custom-and with the implied agreement that such certificate would be discharged in Mexican currency and bank notes at nominal or face value and a tender in that currency was pleaded. The cause was submitted to the court, no jury being demanded, and judgment was rendered that the tender made by appellee and the money deposited in court in Mexican bank notes in the sum of $18,782.00 and Mexican coin of the value of 21 cents was in full satisfaction of the debt, and that ap-pellee recover all costs in the cause expended. The evidence justifies the conclusion that Mexican money in Laredo is treated by the banks as a commodity, and separate accounts are kept by banks for American and Mexican money. The money in question was Mexican bank bills, and was kept among the Mexican accounts. Interest on the deposit was paid in Mexican bank bills, and no complaint was made about this by Mrs. Barreda until 1920, when the bills had greatly depreciated in value. Mrs. Bar-reda admitted having two accounts in the bank, one in American and the other in Mexican money. The only Mexican current funds in Laredo were Mexican paper money. It was the well-known custom to pay all Mexican deposit accounts in Mexican bank bills. Other necessary facts will be found in the course of this opinion. The first assignment of error is that the court erred in overruling appellants’ excep [745] tion to that part of appellee’s answer which sets up a usage aud custom in Laredo as to the payment of time deposits in Mexican bank bills rather than in current funds of the United States, and in all the other assignments from the first to the, ninth, inclusive, the attack is upon the allegations and proof of the custom and usage of banks in Laredo as to deposits in Mexican money. [1, 2] This was a transaction between -a bank and a depositor, and proof of a general course of dealing as between bankers and depositors in the city, town, or locality where the deposit was made would be admissible. The chief office of custom or usage is to arrive at and determine the intention of the parties in connection with matters on which the contract is not clear and explicit. Harrell v. Zimpleman, 66 Tex. 292, 17 S. W. 478. In that case it was a custom among land agents that was sustained. [3,4] Usage comprehends, the habits modes, and course of dealing generally observed either in any particular trade or in all mercantile transactions. A usage must of course be established, known, and reasonable, and mifst be in consonance with law. Ins. Co. v. Reymershoffer, 56 Tex. 284; Williams v. Arnis, 30 Tex. 38. In the last case cited it was said: “That ‘current funds,’ in which the nofe is made payable, does not mean specie, but the representative of it, appears to admit of but little doubt; and what species of ‘current funds’ it was intended by the parties it should be paid in is left uncertain, and is open to explanation by verbal evidence and the determination of the jury.” See, also, Parks v. O’Connor, 70 Tex. 877, 8 S. W. 104, and Dwyer v. City of Branham, 70 Tex. 30, 7 S. W. 598. The evidence was sufficient to show that the custom or usage prevailed among the bankers of Laredo that Mexican dollars were a commodity, not money, and when placed on deposit it was the general custom that it should be paid in Mexican bank bills. That was substantially the only Mexican money that circulated in Laredo. It was proved that, if the certificate of deposit given by ap-pellee had been presented at any Laredo bank, it would have been paid, in Mexican paper money, which was the only current Mexican funds. All the facts and circumstances charge Mrs. Barreda with knowledge of the prevailing custom. It seems preposterous that any bank, knowing the unsettled condition of affairs in Mexico, where revolutions were as regular as seed time and harvest, would take Mexican money of any kind or character, with a guaranty that it should at all times be worth as much in the money of the American realm as it was when deposited. Such a guaranty would indicate phenomenal nerve, but little discretion and weak business sense. The assignments of error from 1 to 9, inclusive, are overruled. The evidence shows that the dollars deposited by Mrs. Barreda were not in fact and truth money, but a commodity varying and fluctuating in value as often and as disastrously as the price of cotton or wheat. They had no fixed value, as have the dollars minted and circulated by the United States of America, and reason would refute the proposition that a bank that desired to retain its credit and perpetuate its existence would guarantee the price of a commodity that is up and down as are waters of the sea. It' is a striking coincidence that the thought of such guaranty never seemed to find a lodgment in the mind of Mrs. Barreda until paralysis struck Mexican bank bills. Prior to that time she had been accepting them in payment of interest, as though they had been “so nominated in the bond.” She placed Mexican bank bills in the appellee bank, and the certificate of deposit does not indicate that they were to be returned in American money, but in the same commodity which was deposited. It is not an attempt upon the partof appellee to give appellants, as they claim, a stone when they had asked for bread, but the action of the bank merely evidenced a desire not to return American silver or gold when something not as enduring as stone had been left in the bank. Through the terms of the certificate of deposit appellee on March 7, 1911, certified that Mrs. Barreda had deposited 16,000 Mexican dollars, which would be repaid to her six months after date, in current funds, with interest at 5 per cent, per annum if left six months'or longer in the bank. The uneon-tradicted evidence showed that the invariable custom was to repay in kind; that Mexican dollars meant Mexican bank bills, which were the only current funds in Mexican money. There is not a particle of evidence tending to show that there was any agreement to return the deposit in American money at the rate of 50 cents on the dollar or in Mexican silver. Mrs. Barreda made no such claim. There was no promise to pay in Mexican silver dollars, nor any other kind of metal dollars, but to pay in kind. The case of Thorington v. Smith, 8 Wall. (75 U. S.), 1-14, 19 L. Ed. 361, cited by appellants, sustains tla© theory that evidence was admissible to show what was meant by the word “dollar” as used in the connection it was. used. The tenth, eleventh, twelfth, thirteenth, and fourteenth assignments of error are overruled. [5] Neither the assignment of error numbered 15 nor the proposition thereunder is sustained by the bill of exceptions upon which they purport to rest. The bill of exceptions' shows that Manuel Vizcaya Sierra had been a merchant in Laredo for 13 years, and had handled Mexican accounts with the [746] bank from 1907 to 1914, and that when he wrote checks on the Mexican account in the bank he designated Mexican on the check and generally got Mexican paper money, that he had now a Mexican deposit in the Milmo National Bank, and that when he was dealing in Mexican money all this Mexican currency was treated alike, all taken at its face value, and, based on his experience and the custom on the Mexican accounts in Laredo, that, if he should write a check to-day for $1,000 Mexican money on the Mexican account, he thought they would not pay him in silver. The objections to it were that it was a checking and not a time deposit account, that it did not show proof of custom in Laredo as to time deposits, and that it was incompetent for the witness to give an opinion as to what would be paid on his check. The objections would be worth nothing if there had been a jury, and certainly they cannot be entertained where the cause was tried by the judge, and the presumption prevails that he gave weight to legal testimony alone, of which there was amply sufficient, in rendering his judgment. The same ruling is applicable to tlie evidence to which objections are urged in assignments 16 to 21, inclusive. The evidence demonstrated that the custom among the banks of Laredo was to place their dealings in Mexican money upon a different footing from those connected with the stable finances of the American government, and that custom must have been known to Mrs. Barreda, for, when acted upon in regard to the interest arising from her time deposit, she at no time- complained until after the finances of Mexico had been wrecked upon the breakers of disturbance and revolution. She does not in her evidence state that she had placed silver on deposit with appellee, nor that she had any contract for a repayment to her in the coin or currency of America or the silver or gold of Mexico. The judgment is affirmed. Footnotes [1] ^=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] ©sjE’or otter oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes