Lakeland Pipe & Supply, Inc. v. First National Bank of Bellaire

899 S.W.2d 230, 1994 Tex. App. LEXIS 1467, 1994 WL 626594
CourtCourt of Appeals of Texas
DecidedJune 16, 1994
DocketNo. B14-92-01307-CV
StatusPublished
Cited by1 cases

This text of 899 S.W.2d 230 (Lakeland Pipe & Supply, Inc. v. First National Bank of Bellaire) 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.

Bluebook
Lakeland Pipe & Supply, Inc. v. First National Bank of Bellaire, 899 S.W.2d 230, 1994 Tex. App. LEXIS 1467, 1994 WL 626594 (Tex. Ct. App. 1994).

Opinion

OPINION

LEE, Justice.

Lakeland Pipe and Supply, Inc. (Pipe & Supply) appeals a take nothing judgement entered on its suit for conversion, negligence, and breach of contract. Pipe & Supply sued First National Bank of Bellaire, N.A (Bel-laire Bank)1 to recover $40,214.97 lost as a result of Bellaire Bank depositing the proceeds from two checks payable to Pipe & Supply, into the account of Lakeland Oilfield Supply, Inc. We reverse and render.

Pipe & Supply is in the business of buying and selling oilfield pipe, with offices in Dumas, Arkansas and Houston, Texas. In January 1989, Pipe & Supply contracted with Stillwater Geothermal I (Stillwater) to provide several thousand feet of pipe. Stillwater operated out of Nevada. Jim Sutherland, an employee, an officer, and a director of Pipe & Supply, negotiated the sale. Sutherland operated Pipe & Supply’s Houston office. As payment for the pipe, Stillwater issued two cheeks payable to Pipe & Supply. The first check, number 01842, was issued on February 13, 1989 in the amount of $18,566.97. The second check, number 02094, was issued April 6,1989 in the amount of $21,648.00. It was the practice of Pipe & Supply to have all checks sent to the Dumas office, which was responsible for payroll, tax, and other accounting matters. However, the Stillwater checks were sent to Houston after Sutherland altered the return address on the invoices sent to Stillwater.

After receiving the first check, Sutherland endorsed it and presented it for deposit at Bellaire Bank. The endorsements on the check read “Lakeland Oilfield Supply,” “Lakeland Pipe and Supply,” and “Jim Suth[232]*232erland” in that order.2 The bank, without determining whether Sutherland was authorized to endorse checks on behalf of Pipe & Supply, or making any inquiries of the secretary of state in reference thereto, cashed the check. Sutherland in turn, used the proceeds from that check to open a new account in the name of Lakeland Oilfield Supply, Inc. Sutherland was an officer and director of Oilfield Supply. Sutherland operated Oilfield Supply from the same office as Pipe & Supply. According to one bank officer, the bank allowed the deposit only after it reviewed the articles of incorporation of Lakeland Oilfield Supply, Inc., and found that Sutherland was a director and that both companies listed the same business address.

Sutherland received the second check over a month later. Again, he endorsed the cheek and presented it for deposit at Bellaire Bank in the Lakeland Oilfield Supply, Inc. account. The bank accepted the check on Sutherland’s endorsement, again without inquiring whether Sutherland was authorized to endorse cheeks on behalf of Pipe & Supply. The second check had endorsements by “Lake-land Oilfield Supply” and “Jim Sutherland” in that order. Check number 02094 did not contain any endorsement purporting to be on behalf of Lakeland Pipe and Supply.

Pipe & Supply never received any of the proceeds from the two checks sent by Still-water. Pipe & Supply brought suit against Bellaire Bank, Sutherland, and Lakeland Oilfield Supply, Inc., to recover the $40,214.97 on grounds of conversion, breach of contract, negligence, and breach of fiduciary duty. Pipe & Supply received a judgment against Sutherland and Oilfield Supply, but was unable to collect on the judgment. In an effort to recover their loss, Pipe & Supply appeals the take nothing judgment granted in favor of Bellaire Bank.

Appellant raises eleven points of error. In its first point of error, appellant contends there is no evidence to support the trial court’s finding that Bellaire Bank acted in good faith and in accordance with reasonable commercial standards when it deposited the proceeds of two checks payable to Lake-land Pipe and Supply into the account of Lakeland Oilfield Supply, Inc. Appellant argues to the contrary, that it is commercially unreasonable to cash checks, having no authorized endorsement, and giving the proceeds to some one other than the named payee. Appellant concludes that the bank’s actions amounted to conversion. The Tex. Bus. & Com.Code Ann. (Vernon 1968) provides that an instrument is converted when paid on a forged endorsement. This is so even though made in good faith. See Continental State Bank v. Miles Gen. Contractors, 661 S.W.2d 770, 773 (Tex.App.—Fort Worth 1983, no writ).

Appellant contends that the bank’s commercial unreasonableness was furthered by the fact that Pipe & Supply was not a customer of the bank, and had no prior dealings with the bank. Moreover, Sutherland was a prior bank customer, and bank records showed he was regarded as an unfavorable customer because of numerous overdrafts and non-sufficient funds on his personal account.

Appellant also argues that if the bank would have only inquired as to Sutherland’s authority with Pipe & Supply, as would be commercially reasonable under the circumstances, it would have found that Sutherland was not authorized to endorse checks in the name of Lakeland Pipe & Supply. Nor was he authorized to deposit Pipe & Supply checks into any Texas bank other than the company account maintained at San Jacinto Savings.

It is elemental, that if a bank pays a check to one other than the actual payee or to his order, or is mistaken as to the payee’s identity or is paid upon a forged endorsement of payee, the bank is responsible. Continental State Bank v. Miles Gen. Contractors, 661 S.W.2d 770, 773 (Tex.App.—Fort Worth 1983, no writ); Morris Plan Bank of Fort Worth v. Continental Nat’l Bank of Fort Worth, 155 S.W.2d 407, 409 (Tex.Civ. App.—Fort Worth 1941, no writ); See also Heusinger Hardware Co. v. Frost Nat’l Bank, 364 S.W.2d 851 (Tex.Civ.App.—Eastland 1963, no writ). Commercial expediency [233]*233and the U.C.C. place the burden on the first bank in the collection chain to insure that endorsements are authentic as it is this bank which is in the best position to make this discovery. Ames v. Great Southern Bank, 672 S.W.2d 447, 450 (Tex.1984).

Bellaire Bank, however, contends that Pipe & Supply, and not the bank was in the best position to discover the forged endorsements. DeWayne Varnadore, a director of Pipe & Supply, testified that there has never been any relationship between Lakeland Pipe & Supply and Lakeland Oilfield Supply. Var-nadore stated that he first heard of Oilfield Supply when he received a telephone call from a representative of Stillwater informing him that the check sent to pay for pipe supplied by Lakeland Pipe & Supply had been endorsed by a company called Lakeland Oilfield Supply, Inc. Varnadore then contacted the secretary of state’s office and learned that Lakeland Oilfield Supply had been incorporated by Jim Sutherland.

By deposition testimony, Charles R.

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899 S.W.2d 230, 1994 Tex. App. LEXIS 1467, 1994 WL 626594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lakeland-pipe-supply-inc-v-first-national-bank-of-bellaire-texapp-1994.