Arkansas Fertilizer Co. v. City Nat. Bank , 1910 Tex. App. LEXIS 8 ( 1910 )

WILLSON, J.

(after stating the facts as above). [1] If the trial judge, when he singled out and adopted as his own the finding of the jury that the.notes were placed with appellee for collection, intended to be understood as thereby setting aside the other findings of the jury, he assumed a power he did not possess. Had he been requested to do so by a proper motion filed, he might have set aside the findings as a whole and granted a new trial. But he was without power, on motion or otherwise, to set aside the findings in part, substitute findings of his own for those set aside, and thereupon render a judgment. Sayles’ Stat. 1897, art. 1832; Casey-Swasey Go. v. Manchester Eire Assur. Co., 32 Tex. Civ. App. 158, 78 S. W. 865; Scott v. Farmers’ & Merchants’ National Bank, 66 S. W. 493.

[2] If the trial judge intended by his judgment to give effect to all the material findings of the jury, it is clear, we think, that he did not succeed in his effort to do so, and therefore that his judgment is erroneous, unless it should be said that the contract between appellant and Owen was void, because in violation of the anti-trust statutes, and that, because it was void, appellant was not entitled to the relief it sought. We do not think it is necessary in disposing of this appeal to determine whether the contract as between the parties to it was void or not. It may be conceded that it was, yet the question as to appellant’s right to re-cove'r as sought by its suit would be left unaffected by such concession. Whether the contract between Owen and appellant 'was one of sale or .agency, and whether it was void or not as between them, the fact remains, as found by the jury, that.the notes were deposited by Owen with appellee for collection only and as the property of appellant. If the contract was one of sale and the notes belonged to Owen, he had a right to make such lawful disposition of them as he chose to make. It was not unlawful for him to use them in paying an indebtedness he acknowledged to appellant, notwithstanding that indebtedness may have originated in an unlawful transaction between them. If the contract was one of agency, the notes belonged to appellant, and, certainly it was not unlawful for Owen to render to it its own. So, we think, when the notes were deposited with appellee as the property of appellant, the latter became entitled to demand and receive same and the proceeds thereof, and, if appellee without lawful excuse for doing so refused, when demand therefor was made by appellant, to deliver same to it, appellee became guilty of a conversion thereof. Did ap-pellee have a lawful excuse for refusing to deliver the notes uncollected and the proceeds of notes collected to appellant when it demanded same July 6, 1905? The jury found that the notes were not placed with appellee to secure any indebtedness due to it from Owen. That finding being accepted, as it must be, as truly stating a fact, upon what theory consistent therewith and with the other fact found by the jury, and referable to the pleadings and to facts found by the court, can it be urged that appellee had a right to refuse a compliance with appellant’s demand? We think there is none. Appellee did not plead that it had made advances to Owen after the notes were placed with it and before it had notice of appellant’s claim, relying upon the ownership of the notes being in Owen; and presumably such was not the fact. Without such pleading, the finding of the court that Owen did his banking business with it, and had become indebted to it, and that it did not know until July 6, 1905, that appellant claimed to own the notes, cannot be given any effect; and, had appellant so pleaded, that finding would have fallen short of furnishing a support for the judgment rendered. For the finding was consistent with the fact that Owen’s indebtedness to appellee might all have accrued before the time when the notes were deposited with it. The notes being the property of appellant as between it and Owen we think it is clear that if appellee did not make advances to Owen, as it appears it did not, relying and having a right to rely upon the notes being his property, it was not in a position to assert as against appellant a lien upon or a right to the possession of the notes.

On the case as made by the pleadings and the findings of the jury and the court forming a part of the record, appellant was entitled to a judgment against appellee for at least the sum of $898.50. The judgment therefore will be reversed; and, appellant in its brief having requested it and so waived its right to a recovery of a greater sum, judgment will be here rendered in its favor against appellee for said sum of $898.50, interest thereupon from the 6th day of July, 1905, at the rate of 6 per cent, per annum, and the costs of this court and of the court below.