Hull v. Guaranty State Bank of Carthage

Court of Appeals of Texas

Hull v. Guaranty State Bank of Carthage

270 S.W. 191

CourtCourt of Appeals of Texas

DecidedFebruary 27, 1925

DocketNo. 3003. [fn*]

StatusPublished

Cited by3 cases

This text of 270 S.W. 191 (Hull v. Guaranty State Bank of Carthage) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hull v. Guaranty State Bank of Carthage, 270 S.W. 191 (Tex. Ct. App. 1925).

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Opinion

WILLSON, C. J.

(after stating the facts as above). In the view we take of the case it is not necessary to determine whether Hull’s contention that the testimony warranted a finding that Trabue assumed to act for the bank in executing the note, and a •finding that the bank was the beneficiary in the transactions constituting the consideration of the note, is tenable or not, for we think if such findings were warranted the bank nevertheless was not liable on the note, because of the provision in article 378, Vernon’s Statutes, that “no bills payable” should be made on behalf of such a bank “except with the consent of the board of directors.” It w¿s not pretended at the trial that the note in question was made with the consent of the appellee bank’s board of directors, or that they knew anything about Trabue’s intention to execute it, or that he had executed it, until long after the time, he made it. The burden of proving such consent was on Hull (Joffre v. Mynatt [Tex. Civ. App.] 208 S. W. 951; Lott v. Bank [Tex. Civ. App.] 254 S. W. 1024); and, he having failed to discharge same, we think the trial court correctly concluded that he was not entitled to recover on the note (Rodgers v. Bank [Tex. Civ. App.] 184 S. W. 620; Bank v. Lyons, 220 Mo. 538, 119 S. W. 540; Gage v. Bank [Mo. App.] 196 S. W. 1077; 7 C. J. 588, 596). If he was not, then hé was not entitled toJ recover anything of the bank, for his suit was on the note; and if he was not entitled to recover on it, he was not entitled to recover at. all in this suit whatever may have been his right had the suit not been on the note. Phelps v. Zuschlag, 34 Tex. 371. It seems, therefore, that the trial court erred when he failed to -render judgment denying Hull a recovery of anything against the bank, and erred further when he rendered judgment in Hull’s favor as stated above.

Therefore the judgment will be reversed and judgment will be here rendered that Hull take nothing by his suit against the bank.

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WILLSON, C. J.

(after stating the facts as above). In the view we take of the case it is not necessary to determine whether Hull’s contention that the testimony warranted a finding that Trabue assumed to act for the bank in executing the note, and a •finding that the bank was the beneficiary in the transactions constituting the consideration of the note, is tenable or not, for we think if such findings were warranted the bank nevertheless was not liable on the note, because of the provision in article 378, Vernon’s Statutes, that “no bills payable” should be made on behalf of such a bank “except with the consent of the board of directors.” It w¿s not pretended at the trial that the note in question was made with the consent of the appellee bank’s board of directors, or that they knew anything about Trabue’s intention to execute it, or that he had executed it, until long after the time, he made it. The burden of proving such consent was on Hull (Joffre v. Mynatt [Tex. Civ. App.] 208 S. W. 951; Lott v. Bank [Tex. Civ. App.] 254 S. W. 1024); and, he having failed to discharge same, we think the trial court correctly concluded that he was not entitled to recover on the note (Rodgers v. Bank [Tex. Civ. App.] 184 S. W. 620; Bank v. Lyons, 220 Mo. 538, 119 S. W. 540; Gage v. Bank [Mo. App.] 196 S. W. 1077; 7 C. J. 588, 596). If he was not, then hé was not entitled toJ recover anything of the bank, for his suit was on the note; and if he was not entitled to recover on it, he was not entitled to recover at. all in this suit whatever may have been his right had the suit not been on the note. Phelps v. Zuschlag, 34 Tex. 371. It seems, therefore, that the trial court erred when he failed to -render judgment denying Hull a recovery of anything against the bank, and erred further when he rendered judgment in Hull’s favor as stated above.

Therefore the judgment will be reversed and judgment will be here rendered that Hull take nothing by his suit against the bank.

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