Whitehead v. City Nat. Bank in Wichita Falls ( 1940 )

On Motion for Rehearing.

Among other things called to our attention by City National Bank in Wichita Falls in its motion for rehearing, is an expression used by us in our original opinion, wherein we said: “Upon cross examination of a representative of the Fort Worth National Bank, in the instant case, it was revealed that that bank was the agent of the Odessa Bank in the matter of collecting the check in controversy * * .” It is asserted in the motion that our statement was an incorrect announcement of the law; but that under the facts revealed in the record, the Fort Worth Bank was the agent of plaintiff, who delivered the check to the Odessa Bank for collection. It is obvious that we did not make the statement as being what we conceived to be the law, but simply summarized what a witness had testified to. The only error in the statement by us was wherein we said the testimony was given on cross examination. We have again consulted the record and find that counsel for the City National Bank in Wichita Falls elicited the testimony from that Bank’s witness, on direct examination. We agree with counsel that the testimony and our statement about it were susceptible to an erroneous statement of the law.

For fear that our quoted statement should again be misunderstood, we think the law is well settled that under the circumstances involved here, the Fort Worth National Bank was the agent of plaintiff, it having been fairly selected by the Odessa Bank to make the collection of the check. Tillman County Bank of Grandfield, Oklahoma v. Behringer, 113 Tex. 415, 257 S.W. 206, 36 A.L.R. 1302, and Garver v. Howard, 113 Tex. 371, 257 S.W. 209.

The above statement and our explanation of it, herein contained, in- no way affect or change the conclusions reached by us in the original opinion. We can see why, upon the trial of the case on its merits, it may become important as ■ to whether plaintiff was bound by the acts of the Fort Worth Bank; therefore we are glad to clarify the statement.

With the above explanation, the motion for rehearing is overruled.