United Sav. Bank v. Castro

230 S.W. 223, 1921 Tex. App. LEXIS 165

Opinions

The facts necessary to a proper understanding of this case are that appellee and wife were indebted to a contractor, in the sum of $2,500, for building a house for them. In payment of said work, they executed their notes to the contractor, secured by mechanic's lien. Appellant was engaged in the business of loaning money, particularly upon notes secured by mechanic's liens. B. E. Hurlbut, at Brownwood, Tex., where appellees and the contractor lived, had for some years represented appellant in making such loans. Appellant sent a draft to Hurlbut for $2,500, with written instructions to the effect that the same should be indorsed by Castro and wife and delivered to the contractor. Hurlbut presented this draft to appellee and wife, and they indorsed the same, and thereupon Hurlbut cashed the draft and placed the proceeds in a bank to his own credit. Thereafter he paid a portion of the proceeds of such draft to the contractor, and converted the remainder to his own use. The case was submitted to a jury, upon the following special issue:

"Who did B. E. Hurlbut represent at the time the draft in question was cashed, Marshall Castro and Julia Castro, or the plaintiff, United Savings Bank of Detroit? "

Under the pleadings and the evidence, this was the only material issue necessary to a proper decision of this case. The jury answered: "United Savings Bank."

The testimony showed that appellees never had possession of the draft, except when the same was handed to them for their indorsement; nor do we think it was intended that they should have. Letters written by appellant, in connection with this transaction, as also in connection with similar transactions, furnish sufficient evidence to sustain the findings of the jury. It would serve no useful purpose to set out these letters in this opinion.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.

On Motion for Rehearing. The determinative fact in this case was: Whom did B. E. Hurlbut represent in the transaction under consideration? This issue was submitted to the jury, and they found that Hurlbut represented the appellant. We found that this verdict was sustained by the testimony. Appellant now asks us to find a number of evidentiary facts with reference to this matter. We do not think any good purpose would be served by our doing so.

Motion for rehearing overruled.

Motion overruled.