Farmers' Nat. Bank v. Harper , 1924 Tex. App. LEXIS 358 ( 1924 )

WILLSON, O. J.

(after stating the facts as above). On his voir dire the juror Anderson testified, in reply to questions propounded to him by appellants, that his acquaintance with appellee was only a casual one, and that he “knew no reason why he would not make a fair and impartial juror in the case.” At the time he so testified, Anderson was living in the same house appellee lived in. Ignorant of the fact, appellants accepted him as a juror. They were informed about it on the day after the trial began, and then objected to Anderson’s sitting in the case, “whereupon,” it is stated in the bül of exceptions, “plaintiff’s counsel made a proposition to defendants’ counsel that they would be wiliing for the court to excuse the juror referred and proceed with the trial of the case with the remaining eleven jurors,” and suggested that “the case be either withdrawn from the jury and continued, or that a new jury be selected and a new trial begun, or that the case be proceeded as it is now.” The court indicated that he would approve either course suggested, if agreed upon by the parties, and if neither course was agreed upon he would “proceed with the trial with the jury as constituted.” Afterward, the parties having failed to agree on either of the suggested courses, the court overruled appellants’ objection, “and,” the bill recites, “proceeded with the trial of the cause before the jury, including the said Anderson,” Appellants insist the action of the court was error which entitled them to a reversal of the judgment. We do not think so. How long the juror had been living in the house appellee lived in, and the circumstances under which he lived there, was not shown, and there is nothing in the record except the bare fact that they lived in the same house at the time of the trial tending, if that does, to discredit the juror’s statement that his acquaintance with appellee was a casual one only and that there was no reason why he should not make a fair and impartial juror, The bill indicates that appellants might have had the juror discharged or a new jury chosen and then have proceeded with the trial had they wished to do so. As they might and did not, we do not think they should be heard to complain as they do.

Not only was the testimony undisputed that wrongful charges, and credits as well, were made in appellee’s account on the books of the bank, but it was also undisputed that the accounts of other patrons of the bank also were tampered with and falsified. It appears from a bill of exceptions in the record that after the jury retired to consider the case, one of them, a man named Black, stated that he had an account with the bank at the time it failed and expressed a belief that it had been tampered with and that he had more money on deposit in the bank than his account showed he had. This conduct of the juror was one of the grounds of appellants’ motion for a new trial, and they complain because the court refused to sustain their motion on that ground. Four of the jurymen testified about the matter at the hearing of the motion. Three of the four said they heard Black make the statement, and each of them said it had no effect on him. One of them testified that they “had substantially answered all the questions” the court propounded to them at the time Black made the statement. The other one of the four testified he never heard Black make the statement or any like it. On the showing made, we do not think it appears that the court abused the discretion he possessed when he refused to sustain the motion on the ground stated.

The judgment was for the aggregate of several sums found in appellee’s favor as shown in the statement above. Appellants insist that the testimony did not warrant the findings as to any of the sums. We think it did as to all of them except the one that the note for $5,119.83, dated February 3, 1920, due in 60 days, purporting to have been made by the Farmers’ Gin & Mill Company, was charged to appellee’s account with the bank. As we understand it, all the testimony was to the contrary of that finding, except only that of appellee as a witness that the charge against him appeared in a statement of his account furnished him by appellants, which, he said, he had in his possession at a former trial of the case but which was after-wards lost. The charge did not appear in the statement of appellee’s account to May 10, 1920, used at the trial, which the parties seem to have treated as a correct copy of that account as it appeared on the books of the bank, and which showed a balance .at that date of $56.59 in appellee’s favor. But that statement did show a charge of $4,719.-83 against appellee April 15, 1920, and he argues that—

“The charge is so similar to the amount of the note that it is doubtless an error, and it evidently represents a charge of the note to Harper’s account twelve days after the maturity thereof.”

We do not think so. On the contrary, we think the jury did not have a right to infer that the $4,719.83 charge in the account was intended to cover the $5,119.83 note. The reasonable inference from the similarity in the amount of the note and the amount of the charge in the account? it seems to us, is that appellee had the amounts confused when he testified, and that the charge in the lost statement of his account was $4,719, instead of $5,119.83, as he remembered it. In that view it can fairly be said, and we think should be said, that it sufficiently appeared that appellee did not discharge the burden resting upon him to show that his account was charged with the $5,119.83 note, and that the trial court should have instructed the jury to find in appellants’ favor on that issue.

As to the other charges alleged to have been wrongfully made on appellee’s account, both the witnesses Stell and Ohesnutt testified that the ámount of the Dora Bindley note for $1,000 was so charged, and there was an entry dated February 26, 1919, in the statement of appellee’s account attached to the statement of facts, before referred to, which we think the jury had a right to say represented the charge; and it appeared without dispute in the testimony that on April 16, 1920, appellee’s account was charged with $88 on account of the Chance note, and on February 24, 1920, with $2,000 on account of the Donaid McGinnis & Co. draft.

The testimony that appellee owned the $629 to the credit of “Harper, Stell & Culp” on the books of the bank also was undisputed.

The other sums found in appellee’s favor and covered by the judgment were $866 on account war savings stamps' and $400 on account Liberty bonds, which appellee claimed he had in a box used by him in the bank. He charged that the stamps and bonds were taken out of the box by the bank or its employees and converted to the use of the bank. We are not prepared to say that the testimony did not support the charge.

In May, 1920, examiners found a shortage of about $50,000 in the bank. With reference to this shortage appellee and others whose names were signed to it executed an instrument as follows;

“May 7th, 1920.

“In regard to the examination of the Farmers’ National Bank of Cooper, Texas, May 6th, 1920, by Nat’l Bank Examiner Fred S. Mansfield assisted by A. B. McCans, a shortage of approximately $50,000.00 was found in the loans and discounts.

“The shortage was caused by the undersigned and other parties at present unknown to the examiners, who tried to make up losses by playing the future cotton board after a loss and materialized in spot cotton.

“We had put up some money from time to time, and frankly had not settled with the bank or the cotton brokers, and were trying our very best to get out of the trades on the hoard, and cheek up and settle with the bank, in view of the alleged shortage, we the undersigned hereby pledge our entire worth towards making up this loss to the extent of $60,000.00 by the 7th of May, 1920.

“It is hereby positively stated by L. E. Stell, cashier of the Farmers’ National Bank, that the boys trading, really did not know just to what extent he was remargining, and in what way, and he assumes this responsibility of making the entries to take care of the situation, and Mr. Stell further guarantees that he will-deed his home within ten days to take care of the difference, after each man has been asked to do his part.

“[Signed] L. E. Stell

“J. T. Rountree

“J. B. Green

“J. A. Harrison

“A. S. Harper

“C. L. Anderson

“by C. Anderson.”

Appellee afterward, on. May 12, 1920, paid the bank examiner $5,565.57 on account of the shortage. He sought to recover back the amount in this suit, and in a cross-assignment complains because the court refused to award him same. The cross-assignment is overruled. We think the action of the court was correct.

The judgment will be so reformed as to -deny appellee a recovery of the $5,119.83 item, and as to award him a recovery of $4-983.52, instead of $10,103.35, and as so reformed it will be affirmed.