San Roman v. de la Serna

McAdoo, J. This cause grows out of the following instrument of writing: “ Brownsville, March 16th, 1870. “The bearer hereof, Mr. William Scanlan, is going through those parts with the object of purchasing mule stock. He leaves deposited in my hands the sum of ($11,100.00) eleven thousand one hundred dollars, which sum.-l hold subject to his order. “Joseph San Roman.” On which instrument was noted the following: “Soto de la Marina, April 4th, 1870. “Under this date I have drawn two bills of exchange against Mr. San Roman, on account of the above mentioned deposit, in favor of Mrs. Ma. Anta, de la Serna and Don Francisco Echevernia, of this town, for the aggregate sum of $4341, of which I make note and sign that it may be known.” “Wm. Scanlan.” The testimony shows that on the day (April 4, 1870) on which the entry was made on the instrument, Scanlan drew a bill of exchange on San Roman, to the order of the defendant in error, for the sum of $3759, in payment of the price of a lot of mules and mares purchased by him from her.. The bill of exchange, when presented for payment to San Roman, was dishonered by him. — 308 — The reason assigned by San Roman for non-payment of the bill was, that Scanlan had withdrawn the eleven thousand one hundred dollars which he had deposited with him on the sixteenth of March, by a bill of exchange in favor of Francisco Armendiaz, of Matamoros. This suit was not brought upon the bill of exchange merely, but the petition of the plaintiff in the court below set out all the facts in the transaction, charged fraud upon Scanlan and San Roman, and claimed that San Roman was bound for the payment of the amount of the bill of exchange, by reason of the facts alleged in the petition. It is claimed by the defendant in error that the instrument executed and delivered by San Roman to Scanlan was not a mere certificate of deposit for eleven thousand one hundred dollars, subject to Scanlan’s order, but was, in fact, a letter of credit. The plaintiff in error claims that it was a certificate of deposit only, and that he was not bound to pay the bill of exchange of Scanlan in favor of Madame Serna, the entire amount of the deposit having been withdrawn by Scanlan before that bill of exchange was drawn. This is the issue in the case, and in the court below it was held to be a letter of credit. It is a certificate of deposit; is it a letter of credit as well % What do its terms import ? It is not in the usual form of a mere certificate of deposit, nor in such form as one would ordinarily write a letter of credit. But no form of words is requisite in order to bind one who contracts an obligation of the kind. It is of no consequence, indeed, whether San Roman intended the instrument to be a letter of credit or not, so far as his liability might be concerned. If an instrument be so worded that it deceive those who deal upon the faith of it, and its language be such that a person of ordinary business understanding might reasonably be deceived by it, then the — 309 — maker of the instrument would be bound in equity to meet the consequence of his own negligence and folly. Was Madame Serna deceived by the instrument? Did she part with her property upon the faith of it ? And is its language such that it might reasonably deceive a person of ordinary business understanding ? The instrument is not addressed to anybody, as a letter, but its terms are such that it might be presented to anybody, and was evidently expected by the writer to be used by Scanlan in forwarding the business upon which he was entering. It was certainly not contemplated that it should be laid aside by Scanlan as merely an evidence to him of his deposit with San Roman. The plain import of the instrument, we think, is about this: To whom, it may concern : Mr. Wm. Scanlan is going into your country with the purpose of purchasing mules. He leaves deposited in my hands eleven thousand one hundred dollars, out of which to pay for purchases made by him, and I hold myself bound to all persons from whom he purchases mules to accept and pay his orders, not to exceed that amount. This was doubtless the understanding of Madame Serna when she took the bill of exchange from Scanlan. That Scanlan intended, perhaps from the inception of his operation, to perpetrate a fraud, is not a matter of doubt. He certainly had the confidence of San Roman in an unlimited degree, otherwise his bill of exchange for the whole amount of the deposit with San Roman would not have been honored without a return of the document, so patent for mischief, which he held in his hands. San Roman trusted him with that document with not a dollar to back it; he deceived Madame Serna, and somebody — 310 — must suffer; as San Roman trusted most he must suffer most. This is the equity of the case. The verdict of the jury and the judgment of the court below have so determined, and we see no error in this determination of the matter, and must therefore affirm the judgment. Affirmed. Opinion rendered September 23, 1873. Browne, for rehearing. After Rehearing. Powers & Maxan, for defendant in error, submitted a motion to dismiss for want of a writ of error bond, citing Paschal’s Digest, Article 1517; 30 Texas, 560. William Alexander, for plaintiff in error. On Motion to Dismiss. Gray, Associate Justice. — A motion to dismiss the writ of error is submitted at this late day, although the case was heard and decided at last term and a rehearing granted. Hone of the grounds for the motion, for irregularity in petition for the writ, misdescription, and such like, can be considered, under the rules of practice. They come too late. But the ground of want of jurisdiction can be entertained at any time. The ground alleged is, that there is no bond for costs, as is alleged to be required, under Section 13 of “An act further regulating proceedings in the District Courts,” approved February 5, 1858. (Paschal’s Digest, Article 1517.) That section does forbid the issue of writs of error in any case, unless bond to secure costs in the Supreme and District Courts shall first have been given. If taken alone, as the only provision on the — 311 — subject, it would be conclusive, for there is no bond in this case which separately or expressly provides for payment of costs. There is, however, a bond in double the sum of the judgment, for supersedeas, and providing for compliance with such judgment, order, or decree as may be rendered by this court, and for payment of all damages that may be awarded. This was given in compliance with the latter portion of Section 140 of the ''Act regulating proceedings in District Courts,” of May 13, 1846. (Paschal’s Digest, Article 1495.) The practice under that act always recognized such a bond as covering the costs, and no doubt or question of it was made until long after the act of February 5, 1858, before cited. But the former portion of the Section 140 of the act of May 13, 1846, required the issue of writs of error when petition therefor was filed in any case, and transcripts to be delivered for filing in this court, without any bond for debt, costs or damages. Such writs issued without bond did not operate as supersedeas to execution of the judgment below, but costs' were accumulated, for which the officers of court had no security, and could not get pay from irresponsible parties. It was solely to remedy this defect that Section 13 of the act of February 5, 1858, was enacted, and not to change the law and practice where supersedeas bonds were given under the act of 1846. It was not intended to require an additional bond for costs, nor even express mention of them-in a supersedeas bond, but only to require a bond for costs in cases where there was no supersedeas bond. Such was the clear and manifest design of the act of 1858; and after a careful examination of all the reported cases we can find none in conflict with this view, when considered with reference to the facts of each case before the court, except the case of Dawson v. Hardy, decided by the Provisional Supreme Court in 1870, and reported in 33 Texas, 198-201. It does not appear to have been. — 312 — well considered; and if there be any other cases reported or unreported they are not in accordance with our opinion of the legislative enactments. We are of opinion that no bond expressly for costs on writ of error is required where there is a supersedeas bond. The motion to dismiss is denied. Motion overbulbd Opinion rendered April 7, 1874.