Milmo National Bank v. Cobbs

115 S.W. 345, 53 Tex. Civ. App. 1

• Court: Court of Appeals of Texas
• Decided: December 16, 1908
• Status: Published

Opinion

FLY, Associate Justice.

This is a suit instituted by T. D. Cobbs, trustee, against appellant and H. N. Morris, receiver' for the Woods National Bank, to recover the sum of $8,360.22, and damages alleged to be due by reason of the following facts:' That said trustee had a contract with J. E. Monroe and Jacobo C. Guerra for the purchase of 5000 acres of land in Starr County, and Monroe and Guerra had a contract to purchase the same land from one Jesus Maria Yzaguirre, and it was agreed between the trustee and the two parties named that the trustee should pay the purchase price of the land to Yzaguirre through the Milmo National Bank, in Laredo, Texas. That on October 24, 1907, the trustee purchased from Woods National Bank in San Antonio, Texas, a bill of exchange for the sum of $8,360.22, drawn on appellant and payable to the order of Yzaguirre, which bill of exchange was given by the trustee to one John Thaison with instructions to place it to the account of the said Yzaguirre in appellant’s bank, and to procure from it a certificate that the amount would be paid to Yzaguirre, and that said Thaison presented the bill of exchange to appellant and requested that the amount of the same be placed to the credit of Yzaguirre, and asked for and received a certificate showing that the money would be paid to him. It was further alleged that at the same time attention was called to the fact that Yzaguirre had not endorsed the bill of exchange, and Thaison suggested that he would take the paper to Yzaguirre and have it endorsed and then the cashier wrote on it: “On return properly endorsed will be credited to the account of Jesus Ma. Yzaguirre, 10-25-07,” and took back the certificate of deposit and gave the bill of exchange to Thaison, who, after leaving the bank, found that it had been stamped “paid.” He returned to the bank and asked about it and was told by Mussett, the assistant cashier, that no change was desired, that it was all right as the bill of exchange had already been credited to Yzaguirre. That said Thaison then proceeded with the bill of exchange to Eio Grande City, near the city of Camargo, Mexico, where Yzaguirre resided, but, being absent from his home, Thaison did not see him, and before he returned Woods National Bank had suspended and been placed in the hands of a receiver, and appellant notified Yzaguirre that it would not pay the bill of exchange, and Yzaguirre then refused to convey the lands to the trustee. That several days after the bill of exchange was issued the trustee was informed by Woods National Bank that the bill of exchange would be paid by the Milmo National Bank. It was alleged that when the bill of exchange was presented by Yzaguirre to appellant that it endorsed on the back of the paper: “Woods National Bank having failed, payment is refused by order of the Bank Examiner in charge.” That when the bill of exchange was issued by Woods National Bank it notified appellant and in reply appellant wrote: “We have your favor of the 24th and note that you have drawn on us for $8,360.22 in favor of Jesus Ma. Yzaguirre. We shall take pleasure in paying draft on its presentation.”

Woods National Bank, on January 7, 1908, answered by general demurrer and general denial, and on same date appellant filed its plea of privilege to be sued in Webb County, which was verified by the affidavit of its cashier, M. T. Cogley. On February 17, 1908; pleas in abatement were filed by appellant, on the grounds that no privity of contract was shown between the two banks, that the trustee did not disclose for whom he was trustee, and that W. F. Woods and Don A. Bliss were proper parties and should be joined in the suit. On same day appellant filed its defenses, without waiving its pleas of privilege and pleas in abatement. In that answer were special exceptions to the petition on the following grounds:

“1st: Because no consideration is alleged whereby this defendant was bound to honor and pay the bill of exchange mentioned in said petition, and it is not alleged that the Milmo National Bank had funds of the Woods National Bank against which the same was drawn.

“2d. Because the alleged act of certification of said bill of exchange was not binding on the Milmo National Bank, but is ultra viresj null and void, it not being, also alleged that the Woods National Bank had on deposit with the Milmo National Bank, at the time of such alleged certification, an amount of money equal to the amount of money specified in said bill of exchange; and it does not appear that such alleged act of certification proceeded upon and was for any consideration; and because it appears that such alleged act of certification was revoked before the said bill of exchange was delivered to the payee named therein; and because it does not appear that the said payee, upon delivery of said bill of exchange to him, became a bona fide holder thereof without notice, but the contrary appears in the allegations of the petition.

“3d. Because the allegations on page 4, beginning, ‘Immediately after the said Woods/ and ending, on page 5, with, ‘Would not be paid/ are insufficient to show any promise made to plaintiff to pay said bill of exchange, or any act of this defendant from which the cause of action sued on arose, and it is not alleged that the alleged letter of this defendant was exhibited to plaintiff, nor when.

“4th. Because it is not made to appear how this defendant has become bound to pay to plaintiff the full amount of said bill of exchange or any amount, nor how the plaintiff has the right to recover of the defendant the said sum of money or any sum of money under the laws of the United States, as alleged on page 5 of plaintiff’s petition, beginning: ‘Your petitioner further shows/ down to and including ‘United States’—it not being alleged that the Woods National Bank had funds on deposit with this defendant at the time such alleged cause of action arose, or at any time; and it further appearing that if any liability arose by reason of the alleged act of certification, such liability was to the payee named in the instrument certified, and not to the plaintiff.

“5th. Because the petition does not show what money, if any, or what consideration, if any, was paid by plaintiff on the purchase of said bill of exchange; nor does it show when, nor how the money was placed in the Woods National Bank, as alleged, nor how much money was so placed.

“6th. Because it is not made to appear how the refusal of this defendant to pay said bill of exchange caused the petitioner to lose the purchase and conveyance of lands, as alleged on page 6 of the petition, • it not being alleged that this defendant made any promise to plaintiff that it would pay said bill of exchange.”

Exceptions to the pleas of privilege and the pleas in abatement were sustained' and the special exceptions of appellant were overruled by the court, and no jury being demanded, the court heard the facts and rendered judgment for the trustee in the sum of $8,360.22 against the receiver and appellant.

There is some diversity of opinion between the courts of the United States and England as to the effect of a written promise to the drawer to accept an existing bill of exchange, which was not communicated to the holder or purchaser of the same, and which, therefore, could not have formed any inducement for the purchase of the bill. In most American cases tlie liability of the acceptor, in ease of a written acceptance, is measured by the acceptance having been an inducement to the taking of the bill; in the English cases it is held to be immaterial. The view generally accepted in the United States, however, is that unless the holder took the bill. on account of the promise it is not an acceptance. (Coolidge v. Payson, 2 Wheat., 66; Schimmelpennich v. Bayard, 26 U. S., 264; Boyce v. Edwards, 29 U. S., 111; Exchange Bank v. Rice, 98 Mass., 288, and 107 Mass., 37.) The rule sustained by the cases cited we believe to be the reasonable and proper one, and we conclude that as the letter 'written by appellant to Woods National Bank did not figure as an inducement to the purchase of the bill of exchange by T. D. Cobbs, the trustee, it should not have figured in the decision of the case. The rule mentioned applies to written acceptances not written on the face of the paper, because it is the desire of the law to restrict within the narrowest limits the doctrine of liability to an action on negotiable paper by reason of anything not appearing on the face of the paper itself.

After the check had been drawn, however, and delivered to the trustee, to whom it belonged, he placed it in the hands of his agent, Thaison, for presentment to appellant, and there was an acceptance of the draft both verbally and in writing, hereinbefore copied. That presentment was a legal one. It was made by the lawfully authorized agent of the rightful holder, and if he had not been, the presentment would inure to the benefit of the rightful holder, whoever he might be. (Tiedeman, Comm. Paper, sec. 212.) The verbal acceptance alone was sufficient to bind the acceptor. (Neuman v. Shroeder, 71 Texas, 81; White v. Dienger (Texas Civ. App.), 25 S. W., 666.)

The acceptance had the effect of an admission upon the part of appellant that it had funds of the drawer with which to pay the amount of the bill, and the acceptor became the principal debtor and primarily liable for payment of the bill of exchange according • to the terms of the contract therein evidenced. (Stark v. Alford, 49 Texas, 260.) As between the holder of the bill and the acceptor, the latter is estopped from denying that he has funds of the drawer with which to pay the bill. As said by the Supreme Court of the United States in Raborg v. Peyton, 2 Wheat., 385: “An acceptance is not a collateral engagement to pay the debt of another; it is an absolute engagement to pay the money to the holder of the bill; and the engagements of all other parties are merely collateral. Prima facie, every acceptance affords a presumption of funds of the drawer in the hands of the acceptor, and is, of itself, an express appropriation of those funds for the use of the holder. The case may, indeed, be otherwise; and then the acceptor, in fact, pays the debt of the drawer, but as between himself and the payee it is not a collateral but an original and direct undertaking.”

In the case of Hortsman v. Henshaw, 11 How., 177, Chief Justice Taney said: “Whenever the drawer is liable to the holder, the acceptor is entitled to a credit if he pays the money; and he is bound to pay upon his acceptance, when the payment will entitle him to a credit in his account with the drawer. And if he accepts without funds, upon the credit of the drawer, he must look to him for indemnity, and can not on that ground defend himself against a bona fide indorsee. The insolvency of the drawer can make no difference in the rights and liabilities of the parties.”

The enunciated rule is founded on that principle of - right and justice which estops a party from escaping liability where he has caused another to lose some right or vantage ground by his acts, words or conduct. Had appellant informed the agent of the trustee that it had no funds belonging to Woods National Bank and could not pay the draft to Yzaguirre, he could, at the time, most probably have saved himself from loss by demanding payment of the drawer, or at least it would have given him a chance to protect himself from loss. On the other hand, appellant promised to pay the draft and lulled the trustee into security until the failure of the drawer on November 6, 1907. As said by a text-writer: “Any language . . . whether verbal or written, emploj'ed by an officer of a banking institution whose duty it is to know the financial standing and credit of its customers, representing that a check drawn upon it is good and will be paid, estops the bank thereafter as against a bona fide holder of the check from denying the want of funds to pay the same.” Bigelow, Estoppel, p. 504.

What the cashier and his assistant told Thaison and the endorsement on the check were equivalent to an acceptance of the check. It was a representation that the check was good, that appellant had funds of the drawer to meet it and would pay it when Yzaguirre wrote his name on the back of it. It was an absolute engagement to pay the amount of the draft to the person for "whom it was intended. The debt thereupon became that of appellant. It had satisfied the agent of the trustee that the bill was good and would be paid and thereby prevented him from taking steps to protect himself until it was too late. Delay in the presentation could not figure in the case because the debt having become that of appellant would remain in force until barred by some statute of limitations. (Farmers & M. Bank v. Butchers & D. Bank, 16 N. Y., 128; Meads v. Merchants Bank, 25 N. Y., 143; Irving Bank v. Wetherald, 36 N. Y., 335.)

It follows from the discussion of the law of the case that the petition was not subject to the general or sp'ecial exceptions urged against it on the ground that it did not state a cause of action. Under the allegations it was unnecessary to allege that appellant had funds belonging to Woods national Bank. It was utterly immaterial whether it had such funds* or not. It was not necessary to allege that the trustee was induced to buy the exchange from Woods national Bank, because that was not the ground of appellant’s liability. It was liable for its acceptance of a check in the hands of "the holder whereby he was prevented from obtaining his money from the issuing bank.

There can be no doubt that appellant was a proper party defendant to the suit on the bill of exchange. It is always proper to join the acceptor of any bill of exchange or any other principal obligor in any contract, with anyone else liable thereon. This rule is statutory. Rev. Stats., art. 1203. It would seem from article 1204 that the acceptor is a necessary party in a suit against the drawer unless certain conditions therein named exist.

Appellant being a proper, if not necessary party, the plea of privilege was properly overruled. Texas & Pac. Ry. v. Mangum, 68 Texas, 342. In that case the court in construing the fourth exception to the general law that a person must be sued in the county of his residence, said: “This, however, does not mean that an inhabitant of this State ma)r be sued in a county other than his residence whenever a plaintiff, without sufficient ground, may join with him as a defendant some person who may be a resident of the county in which the action is brought.. It means simply that if one who is a proper or necessary party defendant resides in the county in which the action is brought, that then other defendants may be joined with him who reside in other counties.” The case of Mathonican v. Scott, 87 Texas, 396, is also in point.

The ninth assignment of error brings in review the action of the court in overruling the exception to the petition on the ground that it failed to state the names of the beneficiaries who were represented by the trustee, and we think the assignment should be sustained. The well established rule is that in suits by or against the trustee for the recovery of trust property, the beneficiary or cestui que trust is a necessary party. (Hall v. Harris, 11 Texas, 300; Huffman v. Cartwright, 44 Texas, 296; Boles v. Linthicum, 48 Texas, 224; Ebell v. Bursinger, 70 Texas, 120; Cotton v. Coit, 88 Texas, 414.) The reason for the rule is the prevention of a multiplicity of suits and that there may be a complete and final decree between all the parties interested. Another reason might be offered in a case like this, and that is that the disclosure of the names of the beneficiaries might open up defenses for the defendant that would not otherwise be practicable or proper. A different case might be developed if the names of the beneficiaries are disclosed. Every one interested in the suit should be made a party in order that there may be a full and fair investigation as to the .relations of each one to Woods National Bank, to the receiver, to the trustee, to the appellant, and to the subject matter. In order to recover, the beneficiaries must appear to have obtained the draft for value and in good faith, for fraud 'will vitiate anything, and unless it fully appears that the beneficiaries, represented by the trustee, actually parted with something of value for the check, and that the purchase was not a mere bookkeeping entry (Daniel Neg. Instr., sec. 779b), the beneficiaries can not recover any sum from appellant. Its liability is based on the proposition that the beneficiaries have been placed in a worse position by the failure to pay the check drawn by Woods National Bank. Not only did appellant except to the petition on the ground that the beneficiaries in the trust were not made parties, but by a. plea, supported by affidavit, suggested the names of parties who were beneficiaries and asked that they be made parties. The court overruled exception and plea.

In this case the holder of the check did not take a certification of the check as payment of the check and thereby release the drawer, but merely presented it and received the assurance that it would be paid when properly endorsed. Nothing was received in lieu of payment of the check. The check or draft had been bought by the trustee and when delivered to him was his property. He could have returned it to' the drawer and have demanded repajunent of his money. It was his, although drawn in favor of Yzaguirre, and at the time it was presented to appellant it was still his property, and all he obtained from appellant was a promise to pay the money if Yzaguirre would endorse it. It was a mere acceptance, and after it was made the trustee still had his recourse on Woods National Bank and could have refrained from giving the check to Yzaguirre and obtaining his endorsement. Before the check ever reached Yzaguirre’s hand he had been notified that the check would not be paid, and he refused to take it and refused to convey the lands for which it was to pay. There was no certification of the check, which would have released the drawer and have made appellant the principal and only debtor, but there was merely an acceptance of it which placed appellant in the position of principal debtor but did not release the drawer. The trustee at the time the check was presented to appellant could not demand payment, for appellant at that time was under no • obligation to pay it, and he could obtain only what he did obtain, a promise to pay in case the paper was indorsed. In other words, he obtained an acceptance of his paper and not a certification. The first does not release the drawer; the latter does. The drawer and acceptor were jointly liable to the trustee and the suit could be maintained in the domicile of either.

The facts were fully stated in the petition and showed a liability on the part of appellant to the trustee, and a direct allegation of a promise to pay was not necessary. The only parts of the letter from W. F. Woods to Cogley, appellant’s cashier, that were relevant were those referring to the fact that the draft had been drawn and that part showing that Woods was interested in the transaction about the land, but we can see no reason why the whole letter should not have been admitted in evidence. We see no pertinency in the other letters excluded.

■ The bill of exceptions upon which the twentieth assignment of error is founded does not disclose what Cogley would have testified Yzaguirre said when he presented the draft, and of course this court is unable to ascertain whether his statement was material or not.

It was error to permit the trustee to swear to the statements made to him by W. F. Woods. Such statements could not bind appellant. They were hearsay and involved a conclusion of Woods, as' well as of the trustee who was testifying.

The letter from appellant to Woods National Bank was admissible, not as showing an acceptance of the draft, but having been written the day after Thaison presented the draft, it was admissible as corroborative of his statements as to the acceptance.

The statement of Thaison made at Rio Grande City, having been presented to Cogley at Laredo and endorsed except in one particular, was admissible as tending to impeach the evidence of Cogley at the trial, and as an admission on the part of appellant.

The telegram of the bank examiner to appellant after the failure of Woods National Bank was properly excluded, as well as the reply to it.- Such evidence could not affect the liability of appellant.

Knowledge of the trustee as to there being no funds of Woods National Bank with appellant to meet the draft could not relieve appellant of the effect of its acceptance of the draft, unless, perhaps, there had been an allegation of conspiracy upon the part of trustee, the beneficiaries, and the officers of Woods National Bank to defraud appellant.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.