Hull v. Guaranty State Bank , 270 S.W. 191 ( 1925 )

^* Writ of error dismissed for want of jurisdiction April 29, 1925. In the view we take of the case it is not necessary to determine whether Hull's contention that the testimony warranted a finding that Trabue assumed to act for the bank in executing the note, and a finding that the bank was the beneficiary in the transactions constituting the consideration of the note, is tenable or not, for we think if such findings were warranted the bank nevertheless was not liable on the note, because of the provision in article 378, Vernon's Statutes, that "no bills payable" should be made on behalf of such a bank "except with the consent of the board of directors." It was not pretended at the trial that the note in question was made with the consent of the appellee bank's board of directors, or that they knew anything about Trabue's intention to execute it, or that he had executed it, until long after the time he made it. The burden of proving such consent was on Hull (Joffre v. Mynatt [Tex. Civ. App.] 206 S.W. 951; Lott v. Bank [Tex. Civ. App.]254 S.W. 1024); and, he having failed to discharge same, we think the trial court correctly concluded that he was not entitled to recover on the note (Rodgers v. Bank [Tex. Civ. App.] 184 S.W. 620; Bank v. Lyons,220 Mo. 538, 119 S.W. 540; Gage v. Bank [Mo.App.] 196 S.W. 1077; 7 C.J. 588, 596). If he was not, then he was not entitled to recover anything of the bank, for his suit was on the note; and if he was not entitled to recover on it, he was not entitled to recover at all in this suit whatever may have been his right had the suit not been on the note. Phelps v. Zuschlag, 34 Tex. 371 . It seems, therefore, that the trial court erred when he failed to render judgment denying Hull a recovery of anything against the bank, and erred further when he rendered judgment in Hull's favor as stated above.

Therefore the judgment will be reversed and judgment will be here rendered that Hull take nothing by his suit against the bank.