Quijano v. Howard

FLY, C. J. Appellee sued R. Quijano and the Mexican American Commercial Company *320 on a draft drawn by Quijano on tbe Mexican American Commercial Company of Laredo, Tex., payable to tbe order of tbe National Bank of Commerce of San Antonio, Tex., for $2,099.17. It was alleged that Quijano was a resident of Bexar county and tbe Mexican American Commercial Company bad its domicile in Webb county. Tbe latter interposed a plea of privilege to be sued in Webb county, and from an order overruling that plea tbis appeal bas been perfected by tbe company. The facts agreed to by tbe parties and approved by tbe trial judge are as follows: “Tbis is a suit on a draft, in tbe sum of $2,-099.17, wbicb said draft is dated April 7, 1921. Tbe same was drawn by R. Quijano, payable at tbe National Bank of Commerce, San Antonio, Tex.; and tbe same was drawn on the Mexican-American Commercial Company, of Laredo, Tex., and same was accepted by said Mexican-American Commercial Company, on April 9, 1921, by written indorsement thereon, duly • signed by the cashier of said • Mexican-American Commercial Company, wbicb said acceptance was in these words: ‘Payable at Laredo National Bank.’- Tbe Laredo National Bank bas its domicile in Laredo, Webb county, Tex.; R. Quijano is a resident of Bexar county, Tex.; tbe Mexican-American Commercial Company is domiciled in Webb county, Tex.; it bas no agent in Bexar county, Tex.; J. W. Howard is tbe owner of the draft sued on, and payment thereof was refused, by defendant Mexican-American Commercial Company, on April 22, 1921; and no facts, other than the above were submitted to or considered by the court in passing upon the issues raised by said plea of privilege and controverting affidavit.” [1] The original statement of facts was filed in tbis court on September 28, 1921, and a motion to strike tbe same from tbe record on tbe ground that a copy was not filed in tbe district court as required by law bas been filed. Appellee bas lost bis right to file tbis motion after tbis long lapse of time. Rule 8. Courts of Civil Appeals. (142 S. W. xi). We do not intimate that the motion would be sustained, even if it bad been filed in proper time. [2] It is alleged in tbe petition that tbe draft was payable to tbe National Bank of Commerce of San Antonio, wbicb is necessarily correct, for if, as tbe statement of facts recites, tbe check was payable “at,” and not “to,” tbe National Bank of Commerce, there was no payee in tbe draft. Tbe appearance of tbe word “at” in tbe statement of facts indicates an erasure and change, but tbe presumption will prevail that tbis was done before tbe statement of facts was agreed to by tbe parties. [3] Whether tbe draft was payable “to” or “at” tbe National Bank of Commerce, there is no doubt about tbe acceptance of the draft, which was “payable at Laredo National Bank,’’ wbicb bank bas its domicile in Laredo, Webb county, Tex. Quijano, tbe drawer of tbe draft, may have promised to pay it “at tbe National Bank of Commerce, San Antonio, Texas,” payee not named; but tbe acceptance was not so made, as it was specially provided that tbe payment should be at a bank in Laredo, Webb county. Tbe facts utterly fail to show that tbe company ever contracted to pay any sum of money in Bexar county. Tbe company was only bound-on tbe draft by its acceptance, and that did not provide for payment in Bexar county. The acceptance of tbe draft was a qualified and local acceptance. Tbe company is bound according to tbe tenor of its acceptance, and: not otherwise. Article 5, § 62, Uniform Negotiable Instruments Act (Laws 36th Leg. p. 197). Tbe judgment is reversed, and judgment here rendered that tbe venue of tbe cause be changed to Webb county, and the cause is remanded to tbe district court of the Seventy-Third district court of Bexar county, with instructions to tbe district clerk to make up á transcript of all orders made in said cause, certifying thereto officially under seal of tbe district court, and transmit tbe same, with tbe original papers in tbe cause, to tbe clerk of tbe district court of Webb county. Reversed and rendered. Footnotes [1] ifjmVnr other cases see same topic and ICEY-NUMBER in all Key-Numbered Digests and Indexes