Houston Nat. Exch. Bank of Houston v. Sapp , 252 S.W. 299 ( 1923 )

After long and careful consideration of this case, the writer is so thoroughly convinced of the fact that it was decided wrong by the trial court that he feels impelled to dissent from the judgment of this court affirming that judgment; and the reasons for that dissent will now be stated.

Perhaps the first question in due order for decision is a construction of the certificate of deposit upon which the Houston National Exchange Bank bases its right to recover against the Planters' National Bank of Rosebud. That instrument contains all the language necessary to constitute a promissory note, payable to the Columbian Refining Company or its order three months after date, unless it be that the last sentence therein, stating that it is not subject to check and is not negotiable, destroys its effect as a promissory note. I am of the opinion that the statement that the certificate was not negotiable was not intended to limit the power of the Columbian Refining Company to assign it and vest in the purchaser all the title which was held by the refining company, and that the inhibition against drawing checks for the money was intended to be limited to the period of time intervening before the instrument fell due. Any other construction would place it in conflict with the specific statement in the preceding part of the instrument, whereby its maker, the Planters' National Bank, promised to pay the money therein specified to the Columbian Refining Company, or its order. A written unconditional promise to pay at a specified time to a person named or his order a designated sum of money is a promissory note, and such is the instrument under consideration. See sections 1 and 184 of the Uniform Negotiable Instruments Act, approved March 24, 1919 (Vernon's Ann.Civ.St.Supp. 1922, Arts 6001 — 1 to 6001 — 184).

The word "negotiable" has more than one meaning, and in its commercial sense, when used in reference to bills of exchange, promissory notes, and similar instruments, it signifies that such instruments carry with them, by indorsement, the legal title; but also that when acquired before maturity, for a valuable consideration, and without notice of any equities between the maker and the assignor, the assignee is entitled to collect the full amount specified in the instrument. We all agree that the language "not negotiable" contained in the instrument under consideration was merely intended to deny to any holder the right to claim such protection as an innocent purchaser, and was not intended to limit the power of the Columbian Refining Company to transfer its title to the instrument, subject to whatever equities might exist between the maker of the instrument and the refining company. This construction allows full effect to be given to all of the terms of the instrument, and brings the case within the purview of article 583 and article 584, copied in the majority opinion. Those two statutory provisions were construed and applied by our Supreme Court in the case of Stamford Compress Co. v. Farmers' Merchants' Nat. Bnk., 105 Tex. 44, 143 S.W. 1142, Ann.Cas. 1914D, 1298. In that case the Compress Company issued an instrument, which read as follows:

"No. 290. Stamford, Texas., May 13, 1908. No. Bales 42. Stamford Compress Company. Received from West Cotton Yard for account of Will Rives, mark ___, at owner's risk forty-two bales cotton. Not responsible for water damage or loss or damage by fire. This receipt must be returned on delivery of the cotton and is nonnegotiable. [Signed] T. O. Purkett, Supt."

For a valuable consideration, Will Rives delivered the receipt to the Farmers' Merchants' National Bank, and thereafter the compress company delivered the cotton referred to to Will Rives, he stating to the compress company that the receipt was among his papers and that he would deliver it to the compress company. It seems that the receipt was transferred by Rives to the bank, but the compress company had no notice or that fact at the time it delivered the cotton to Rives. Applying the two articles of the statute, set out in the majority opinion, the Supreme Court said:

"By the plain language of the two articles copied, the rights of the parties are defined to be that the bank acquired title to the property, and by notice to the compress company could have compelled delivery to it, the bank, and if the compress company had, after such notice, delivered the cotton to Rives, it would be required to pay its value to the bank. The right given by article 309 to sue on the contract is predicated upon the provision that requires it to allow all defenses which the compress company had against Rives which arose in favor of the compress company before it had notice of the assignment of the receipt."

In the case at bar, the undisputed proof shows that the Houston National Exchange Bank gave notice to the Planters' National Bank that it had become the owner of the certificate of deposit prior to the time the plaintiff Sapp acquired any right against the Columbian Refining Company. When the Houston National Exchange Bank bought from the Columbian Refining Company the certificate of deposit, it acquired at least all the title the latter then had to that instrument, and when it demanded payment thereof after it fell due, the Planters' National Bank owed it the amount specified in that instrument, unless it be true, as held by the trial court, that appellee Sapp had acquired a superior right to the money which the Columbian Refining Company had deposited with the Rosebud Bank. After acquiring notice of the rights of appellant, neither the Planters' National Bank nor the Columbian Refining Company could make any contract that would affect the rights of the Houston National Exchange Bank, unless it be, as held by the trial court, that the $2,000 on deposit with the Rosebud Bank was held by the latter as a trustee for the benefit of any person who might erect the filling station for the Columbian Refining Company.

The other members of this court, as shown by the majority opinion, hold that the finding of the trial court last referred to is supported by the testimony, and that although the certificate of deposit was in law a promissory note, payable to the order of the Columbian Refining Company, and not disclosing any trust or the rights of any other persons, nevertheless, as it stated on its face that it was not negotiable, appellant, the Houston National Exchange Bank, was charged with notice that a trust existed in favor of appellee Sapp. Upon that ruling, the writer dissents, because the proof fails entirely to show that there was any valid contract or agreement, either express or implied, before appellant acquired its rights, by which the Rosebud Bank became a trustee for the benefit of any one who might thereafter, in whole or in part, construct the improvements referred to.

The majority opinion does not set out the testimony which it is held supports the finding of the trial court that the money deposited by the refining company with the Rosebud Bank was intended as a trust fund with which to pay the claims of all persons who might contribute in the construction of the filling station; and therefore, in order that the reasons for my dissent may be understood, the pleadings of the plaintiff Sapp, as well as all the testimony relating to the question of trust, will here and now be set forth.

The plaintiff Sapp alleged in his pleadings:

"That the fund in the hands of the garnishee is in substance and effect a trust fund, and was such continuously from the time of its deposit, and was in said bank by the original defendant Columbian Refining Company for a special purpose then and there agreed upon by and between the Columbian Refining Company and the garnishee bank, for all of this, to wit:

"That the Columbian Refining Company was desirous of and was contemplating the erection and operation in the city of Rosebud of a gasoline filling station for automobiles, and accordingly it prevailed upon various and sundry of the citizens of Rosebud to take stock and subscribe and pay money to it for such purpose, and did agree with such citizens as contributed their money thereto and with garnishee bank at the time of making the deposit in question that such deposit was so made for the purpose of carrying out such enterprise and for the purpose of performing its promise to those who had contributed to such fund, and the garnishee bank accordingly accepted such deposit upon the representation of the Columbian Refining Company that said money so deposited for the purpose of erecting such filling station would be used for such purpose; and the garnishee bank accordingly issued, not its usual certificate of deposit, but a certificate of time deposit, which by its terms was declared to be nonnegotiable; and that therefore the defendant Houston National Exchange Bank, if it purchased such certificate (which is not admitted), did so charged with full notice and knowledge of the use to which said money had been devoted.

"That thereafter and pursuant to the above-mentioned plan, the defendant Columbian Refining Company made and entered into a contract with plaintiff to erect such filling station for the price and consideration stated in plaintiff's suit against the Columbian Refining Company as fully set out in exhibit attached to plaintiff's petition in cause No. 1007, which said contract was carried out and fully performed on the part of plaintiff, and the said Columbian Refining Company has wholly failed and refused to pay plaintiff therefor; and that at the time plaintiff entered into his contract as aforesaid with the Columbian Refining Company, it represented to plaintiff that it bad the money to pay therefor in the garnishee bank, and that said money would be used for such purpose; and that the fund in controversy was the only fund claimed by the Columbian Refining Company in said garnishee bank, and was the fund in contemplation of the parties at the time the above representations were made; and that these representations were made for the purpose of inducing plaintiff to enter into said contract and to give bond for the faithful performance of such contract (such bond being a part of the same transaction in which the contract was executed); and that plaintiff relied upon such representations, and would not have contracted as aforesaid but for them.

"Plaintiff further pleads that at the time he entered into said contract and performed same he had no notice or knowledge of the claim of the impleaded defendant Houston National Exchange Bank to said fund, nor of its alleged transactions in connection therewith; and that likewise he had no notice or knowledge of said claim or transaction at the time his writ of garnishment herein was served herein.

"Wherefore plaintiff says that he acquired a superior right in and to said fund, as against the Columbian Refining Company, and as against the Houston National Exchange Bank, by reason of said representations, and by reason of the facts and circumstances connected with such deposit; and that likewise he acquired a superior right in and to said fund by reason of his garnishment herein, and the facts and circumstances connected with such deposit. Plaintiff also denies the allegations contained in the answer of Houston National Exchange Bank."

The Rosebud Bank, the garnishee, stated in its answer that, at the time the writ of garnishment was served upon it, there had been deposited to the credit of the Columbian Refining Company the sum of $2,000, and the same was still on deposit in the garnishee bank; that the instrument representing said deposit and said transaction was the garnishee's certificate of deposit, No. 511, dated July 8, 1920, and reciting that said amount was due and payable three months after date, and the said instrument was nonnegotiable; that the garnishee still had that sum of money on deposit under and by virtue of said certificate, and was indebted to the Columbian Refining Company, or to whoever might be entitled to said sum of $2,000, without interest. It also alleged that the Houston National Exchange Bank was claiming to hold said certificate of deposit and to be entitled to collect the same from the garnishee; that it, the garnishee, was ready to pay said sum to whoever was entitled to it, and asked that the Houston National Exchange Bank be made party to that proceeding, in order that a judgment might be rendered that would protect the garnishee. Appellant, the Houston National Exchange Bank, filed an answer, alleging that it had purchased the original deposit certificate for $4,100 issued by the garnishee; that the latter had paid thereon $2,100, and had issued certificate No. 511, showing its indebtedness for the balance of the original deposit of $4,100; that it purchased the original certificate before maturity and paid a valuable consideration therefor without any notice of the adverse claim asserted by the plaintiff Sapp.

In the spring of 1920, a man by the name of Huff, who was an agent of the Columbian Refining Company, went to the town of Rosebud and sought to enlist financial aid and assistance from the citizens of that town, for the purpose of establishing what is commonly known as a filling station. It seems that he was proposing to and did sell stock in the Columbian Refining Company, and in order to do so he made certain representations to certain citizens, who were placed upon the stand as witnesses by the plaintiff, and testified as follows:

J. A. Tarver:

"I am active vice president of the Planters' National Bank. My initials are J. A. I remember the transaction of the Columbian Refining Company on the occasion of them selling stock in Rosebud. A man by the name of Huff was representative of the company at the time; that was in the spring of 1920. As to the agreement that was made with reference to money collected from the sales of stock there in Rosebud, I will state that the agreement had with me was that they were to leave the money in our bank and to build a filling station there. There was something over $4,000 deposited there. As to the representation of the agent with reference to the probable cost of the filling station, I will state I don't remember him ever saying; he showed us cuts of filling stations at Bryan, Navasota, and Houston, and other places; I don't remember what he said the filling station would cost, but the money was to be left there until the filling station was completed, and I purchased stock with the understanding that the money would be left in the bank.

"I know about the original certificate. He approached Mr. Donaldson about paying some interest on it, and about three or four months before it was completed Mr. Donaldson came back and asked me, and said that they wanted a little interest on it, and I said, ``All right; pay them 3 per cent, and issue a certificate, nonnegotiable,' which we always do. I was not there when the renewal of the certificate came up. If I had been, I would not have paid them anything until the filling station was built.

"I took stock in the Columbian Refining Company as an individual."

O. C. Hughes:

"My name is 0. C. Hughes. I live at Rosebud. I lived in Rosebud in the spring of 1920, at the time the representative of the Columbian Refining Company was selling stock there. I was with the agent, Mr. Huff, the biggest portion of the time when he was offering that stock — nearly all the time. The representation that he made to prospective purchasers of that stock was that the money was to be used to put in a filling station there; they were to put in $6, 000, and we the like amount; they had theirs, and we got busy and raised $6,000. He told us to put in as much as we could — so much money and they would take hold of it and put in the balance of it. He said not a nickle would leave town but would be deposited in the Planters' National Bank, and that we would see it spent right there on the corner, and not one cent of it would leave town; he told us all of that. Mr. Huff sold the stock and collected a few Liberty Bonds and some money. I don't think he deposited all of that money in the Planters' National Bank. I think he put $4,100 in there is the best of my recollection. I thought at the time he put it all in there, but found out later he didn't.

"As to the statement he made as to the probable cost of the filling station, or how much money would be put into it, I will state that he explained to us he was going to put in one worth $12,000 or $13,000. They were going to put in as much or more than the town. He wanted the town to raise $6,000. He told us it was either going to be brick or stucco, and it would have a driveway, and rest room, and four or five carpets on the floor and was going to have an up-to-date and jam-up place."

E. A. Donaldson:

"My name is E. A. Donaldson. I am cashier of the Planters' National Bank of Rosebud. I occupied the same position in the spring of 1920. I met Mr. Huff, the man that represented the Columbian Refining Company several times. I had a conversation with him with reference to the Columbian Refining Company depositing money that was collected from the sale of stock of the Columbian Refining Company with the Planters' National Bank of Rosebud. He approached me on the matter and said he would like to leave the money there as an evidence of good faith with the stockholders in the town, and it would not be drawn out only for the purpose of erecting a station, and he said he would like to get some interest, and I told him we would allow him 3 per cent., and he told me that the work would be through in 30 days, but that would not give him much time, and he told me to make it 90 days, and we agreed to it. I don't think I was present at any conversation with the stockholders where he told them what the money would be used for, except he got up before the Commercial Club and made a bunch of utterances that the money would not leave the town and asked the co-operation of the officers of the Commercial Club. They wanted them to produce a good bond, and he (Huff) told them that they were not running a wild eat scheme, or anything of the kind. He showed us cuts, I believe he said of Galveston, and I believe he said, that cost $20,000, and he mentioned $12,000 as a probable cost of the filling station at Rosebud. He said that the station would be made up of reinforced concrete stucco, with two center driveways, with rest rooms, and it would be well lighted and would contain all equipment and would correspond with any station in Houston or Galveston and would contain every means of luxury that was possible to contain.

"Q. Just before these original certificates were issued to the Columbian Refining Company came due, I'll ask you if you had any correspondence with the Columbian Refining Company and with the Houston National Exchange Bank? A. I had none with the bank. I wrote the Columbian Refining Company I would be glad to renew the certificates if they wanted me to as I had it in my hands at the time, and I suggested that I would be glad to carry it and give them more time to comply with their contract and agreement. There was a $4,100 certificate originally and possibly a $900 certificate — a small one. There was $900 in Liberty Bonds. I don't remember the exact amount, but he said he did not care to cash them at the prevailing prices, and he sent them in to the company to let them dispose of. The letter of June 25th is the first letter I wrote them. About that time I received a telephone message, I think from Mr. DeZavala, immediately after he got notice that this certificate had been returned unpaid, and in that conversation he insisted upon payment of the certificate, and I called his attention to the nonnegotiable clause of that instrument, and he asked me if it had been investigated since its issue, and I informed him that it was a part of the original renewal. The $4,100 was presented to us through the Federal Reserve Bank first, and we returned it under the instructions given us. After that they (Houston National Exchange Bank) directed the First National Bank to present it for collection with instructions to protest if not paid. When I returned this certificate when it was originally presented, I don't think I made any notation on it; I attached our reasons to the certificate.

"Q. I see here a telegram of June 26th to the Federal Reserve Bank (hands telegram to witness). A. That was the original presentation of the certificate; it was originally presented to me on June 26th, and I wired the Federal Reserve Bank. The attached notation was put on this certificate when we returned it; I did not care to write anything on the certificate but attached a notation to it:

"``This certificate was issued with the express understanding that the money would be used, before the expiration of the certificate, to construct a filling station at this place.

"``We will pay the certificate when they have complied with these provisions.

"``Planters' National Bank, Rosebud, Tex.'

"I think the collection was presented on Saturday, and I think on Monday Mr. DeZavala had a wire from the Federal Reserve Bank stating it had been turned down. He (DeZavala) asked why the certificate had not reached him. The certificate did not reach there for possibly one day after he got the telegram, but it was mailed on the same date we received it. It was in the phone conversation with Mr. DeZavala that I told him why the payment was turned down. I remembered telling him distinctly that it was placed here with the expressed understanding that the Columbian Refining Company, the indorser, would leave it in the bank and that it was a nonnegotiable instrument and we were returning it. As near as I can remember, I explained that after they (Columbian Refining Company) put the money in the bank they had an understanding with me that it should remain with me until the building was completed; we had quite a lengthy conversation which I do not remember the details of. I don't remember subsequent conversation with Mr. DeZavala. I had a telegram from him — the telegram of June 29th in answer to my letter of the 25th. Mr. DeZavala called us ``collect,' and I told him I was not dealing with the Houston Exchange National Bank and did not care to incur the extra expense and annoyance.

"As to the transaction with reference to the $2,000 in controversy, I will state that after we received a letter from the Columbian Refining Company their agent called on me and presented a letter of introduction and told me he was there to build a station and let a contract for it, and also took up the matter presently in regard to various supplies, and he showed me expense bills and waybills and invoice covering a large filling tank and pump and various things of that kind to go into the station; he showed me a bill of lading consigned to them and to Rosebud. I had different requests from the Houston National Exchange Bank laying claim to this certificate and telling me I should deal directly with them, and after the Columbian Refining Company had shown me evidence of starting to work I agreed to release $2,100 of this and reserve the $2, 000 to be held back until the filling station was completed, and he (Huff) assured me that was entirely satisfactory. As a matter of fact, I could not issue the $2,000 certificate until the original certificate was sent to us for $4,100, and I think the Houston National Exchange Bank sent it to us, and we issued it ($2,000 certificate) payable to the Columbian Refining Company, and there was a correction in the lettering, and it was changed to the name of the Columbian Petroleum Company or something like that, but it was still made payable to the order of the Columbian Refining Company, the same as the others. That was the certificate introduced here for $2,000. I don't recall that I had any conversation with Mr. DeZavala over the phone with reference to that.

"I remember the occasion of Mr. Sapp making a contract with the Columbian Refining Company for the erection of a filling station. From those letters introduced, Mr. White was over there as representative of the Columbian Refining Company. I was present on one occasion in the bank when Mr. White and Mr. Henslee and Mr. Sapp and Mr. Gaither had a conversation about this contract. I remember Mr. White making a statement at that time with reference to this $2,000. The Columbian Refining Company was requiring a bond from the contractor, and the question was raised as to the Columbian Refining Company's giving a bond as to their good faith and intention, and Mr. White made the assertion that it was not necessary, as they had ample money in the bank to protect the contractor. The written contract that has been introduced in evidence was drawn before then, and they were discussing it then; I can't say I saw the contract signed that was written up between Mr. Sapp and the Columbian Refining Company, but I saw a copy of the contract on the table, and I presumed it to be signed. The Columbian Refining Company did not have any other funds in the Planters' National Bank except the $2,000.

"On the 3d of July, the date of the contract, they did not have any other money in the bank other than covered by the certificate of deposit to the Columbian Refining Company — none other than shown by the certificate of deposit.

"Mr. White was the agent that came up there representing the Columbian Refining Company that was mentioned in the letter referred to here this morning. He was the man who was to let the contract and complete the work. He had a letter of introduction and credentials showing that he was the authorized representative.

"Q. I'll ask you to state whether or not at that time or any other time you told Mr. Sapp or Mr. Gaither that the Houston National Exchange Bank was making any claim on this fund? A. I don't remember having mentioned that until after this suit, that there was any claim being set up at all.

"The second certificate of deposit, I presume, was issued by the Planters' National Bank on the 8th of July. I did not have any negotiations with this same Mr. White with reference to issuing this second certificate. I had negotiations with the home office at Houston of the Columbian Refining Company. Our first interchange of letters had taken place somewhere around June 25th with reference to these certificates of deposits; that is, the original one of $4,100

"Q. So that, from about that date on, you knew that the Houston National Exchange Bank was claiming to own that certificate of deposit? A. The only information I had that the Houston National Exchange Bank had interest in this was when I received the letter introduced this morning from the Houston National Exchange Bank — about the same time that Mr. DeZavala and myself had the conversation over the telephone. I wrote a letter up there and they (Houston National Exchange "Bank) accepted the proposition. They accepted the $2,000 certificate, and the $2,100 in cash was paid, and the $2,000 certificate was given as a basis for a compromise and afterwards the certificate was sent to us; at the same time Mr. White came up and represented to me that they were going ahead and build the station and fulfill the contract and showed me evidence that they were shipping the stuff there. We first reached the agreement as to the payment of cash, and by way of compromise I gave them a new certificate, but I would not issue the second certificate until the first had been returned to me. It is perhaps correct that we reached an agreement with reference to that matter some days before the 8th of July.

"The contract between Mr. Sapp and the Columbian Refining Company was made about the 8th of July, but I do not remember with reference to that date when it was that Mr. White and Mr. Sapp had the conversation I testified to. I only remember him trying to make the contract. They possibly had agreed on the contract and came in there trying to make the bond. They had some kind of written paper when they came in, and to the best of my recollection it was not signed up at that time.

"Q. At that very time you knew that the Houston National Exchange Bank was claiming to own that fund there by assignment and indorsement by the Columbian Refining Company? A. I knew from that letter they were claiming the fund. I did not know that the Houston National Exchange Bank had anything to do with them (Columbian Refining Company). I never did ask them if they had any interest in it. I had nothing to do with this garnishment about the claim of the Houston National Exchange Bank.

"Q. At that time you knew that the Columbian Refining Company did not hold that certificate of deposit; you had notice to that effect from the Houston National Exchange Bank, did you not? A. Possibly so, and possibly from the Columbian Refining Company; I think they (Houston National Exchange Bank) notified me that they had it and was claiming it and had it in their possession.

"Q. On July 3d, then, since your second certificate of deposit was not issued until July 8th, the Columbian Refining Company or the Houston National Exchange Bank, or whichever one holds that certificate had not had the $2,000, but the $4,100 deposit was at your bank? A. Yes, sir. All of my transactions with reference to this compromise and extension was had with the Houston office of the Columbian Refining Company, and no representative of that company came up to Rosebud to deal with me about the matter. I really don't know whether Mr. White was there at the time the second certificate of deposit was issued or not.

"As to whether we got the $4,100 certificate when we arranged to settle, I will state that it was sent to us by the Houston National Exchange Bank. As to how we sent the new certificate, I will state I think we attached our draft for $2,100 and certificate of deposit payable to the order of the Columbian Refining Company. That's my recollection of the matter; I think the draft was made payable to the bank; we had to make it payable to them because it was sent to the bank.

"That was the ordinary course of business. It was made in form, and we were responsible to them for them — in making remittances and so on. The usual certificate of deposit that we issue would be issued usually with a deposit ticket; this time certificate of deposit is handled altogether on separate books but does not go on the deposit book at all."

Roy Gaither:

"My name is Roy Gaither. I live at Rosebud. I am manager of the Wm. Cameron Lumber Yard Building Material. I know Mr. Sapp, the plaintiff. I worked with him in the making of this contract and associated with him in looking after the contract. The first information that I had of the contract to be let, or that the Columbian Refining Company wanted to build a station there, was when they wanted to sell me some stock Mr. Huff and Mr. Ollie Hughes came and tried to persuade me to purchase stock, and I told them I did not care to invest in it, and they talked oil awhile, and I didn't invest the first time, and they assured me then, regardless of whether I did invest or not, if they had anything to do with the purchase of the material that I would sell them the material, and later they both told me they lacked one or two and they wanted to close up that day, and I took stock that day, and that was the first knowledge I had that they wanted to build the station. At that time Mr. Huff stated to me that the money would be placed in the Planters' National Bank and would be expended in the building of the station, and he further stated that additional money to that subscribed locally would be put into the erection of the filling station. Along about the 1st of July, I had information that they contemplated letting a contract for the erection of this station. Mr. C. M. White came there as construction engineer, and he came up with a blueprint and submitted it to us and wanted a contract on it, and I told him we did not contract, but that we would get him a contractor, and we got Mr. Sapp under their contract, and he (White) showed us a blueprint of a station prepared for Louise, Tex., of frame stucco, and I immediately called his attention to the fact that the location was in the fire limits, and it would be necessary to make some changes on it, and it was agreed that we would change the contract which we did, and it would be a metallath stucco construction with cement floor and a certain kind of roofing that could pass the ordinances, and he asked me to make out a bill of the material to go into the contract covering an ordinary stucco, so I made out a bill of the material, and Mr. Sapp went over it with me, and we had it too high. It ran higher than they wanted to expend; I don't think he told us at that time it was high, but we finally got to an agreement as to the bill for material, and we got down to the contract where it was not to cost over $2,000, and we figured about $50 over that and that cut us off. After it was agreed on the sum or amount of money Mr. Sapp would take the contract for, we went over to the Planters' National Bank, and a contract was drawn by Mr. White unsigned, and a bond, and he handed them to me to read, and I read them and passed them on to Mr. Sapp, and in reading the bond I told him it wasn't strictly a bond; the bond was so constructed that Mr. Sapp was expected to build, erect, and finish in a good, substantial, and workmanlike manner in conformity with the plans and specifications, but there wasn't anything said about their living up to their obligations of paying Mr. Sapp according to the contract, and he spoke of having money there to amply protect the bondsmen. Mr. Sam Henslee wanted to know if he (Sapp) would be protected; that Mr. White was without bond, and he (Sapp) had no assurance that the money was in the bank, and at that time they came up and were looking over the contract and bond that was to be signed up, and Mr. Henslee was asked to sign as surety to Mr. Sapp. He (Huff) stated that they were leaving $2,000 in the bank, the Planters' National Bank, to protect us, That same day I asked Mr. Donaldson about it, and he told me he was letting them have some money from the money under representation that they had ordered a tank and that they had showed him a bill of lading for that and some pumps also. That $2,000 was to be left there. Mr. Donaldson assured us that this $2000 was being left there, and Mr. White told us also. Mr. White told us about this tank being on the road and would be unloaded and it would be there to show for it, and Mr. Donaldson told us he let them have that money for these things that were coming and $2,000 was being held. At that time I absolutely knew of no claim that the Houston National Exchange Bank was making on this fund. The first information I had was when they read the answer of the Planters' National Bank in the writ of garnishment.

"This original contract of construction with Mr. Sapp was entered into with the Columbian Refining Company the first part of July, and he went to work on it in July, and he went on and finished 21 days of it, and during the 21 days he completed 80 per cent. of his contract, and when he had finished the first part of the work in August, Mr. Sapp drew on the Columbian Refining Company for part of the work, and we waited a few days then for Mr. White to come down, and there was some correspondence had with them, and they told us their engineer would be there and told us the reason the first draft had not been paid; that it was because the work had not been O. K.'d by the engineer. When he (engineer) came down and inspected the work, he O. K.'d the draft for the amount of $1,200 which was drawn payable to the Planters' National Bank with Mr. Sapp on it. That draft stayed down there (Houston) quite a bit, and it was returned to the Planters' National Bank unpaid, and we wrote them and asked them why they did not pay it, and they wrote and told us to return it and they would pay it. I remember discussing it with Mr. Donaldson, and I told him we would have to go ahead and complete the other 20 per cent., then garnishee the money Mr. White told us he had in there; that they had not come clean with the contract and had not completed their contract. We discussed the money matter and decided we had no right to draw it out ourselves. We drew on the Columbian Refining Company at Houston, and we figured on completing the work, and then if they did not pay us we would garnishee the bank. We understood it was in there with a nonnegotiable note. I understood it was nonnegotiable the day White was there, and the question was asked Mr. Donaldson as to the representation — or whether the money was left there or not. On July 3d Mr. White told us the money was in the bank on deposit. He never said anything about the claim of the Houston National Exchange Bank.

"He did not say that they (Houston Exchange National Bank) had in their possession the $4,100 deposit; he did not mention the Houston National Exchange Bank. He told us he was leaving the money there, $4,100 to protect the bondsmen as well as us. He told us it was represented by a nonnegotiable instrument, and we gave them 90 days from then to complete the job, and on the day the contract was drawn I asked Mr. Donaldson if they left $2,000 there, and he informed me that they had and that verified Mr. White's statement. He told us the company would not allow him to sign a bond, but he had made Mr. Henslee sign a bond, and he (Henslee) wanted to know what protection he would get if he signed the bond."

The plaintiff, T. M. Sapp, testified as follows:

"I am the same Sapp that entered into a contract with the Columbian Refining Company to put in a filling station at Rosebud under the terms of the contract dated July 3, 1920. I completed that filling station according to the plans and specifications.

"I don't know just the time I completed it. Mr. White asked me when he made the contract to be sure not to put down the cement until the tanks came in for the floor, and I held back on that account for two or three weeks, and he came up and accepted the work as far as it went and told me to go ahead and put the piping under the cement, and that was not in my contract, and he said he would allow me extra for the work, and I went ahead and put the piping in so that the tanks could be connected with it afterwards and he accepted the work that far. I don't recollect what date that was; the papers will show. As to whether or not it is my recollection that Mr. White accepted the work September 18th, I will state that it was before that. I could not finish it until the pipes were put in, and he said to wait until that was done, and I waited about two or three weeks, and that made it about September that I completed the work or the major portion of it.

"I live at Rosebud. I am a contractor. The first time I opened negotiations with the Columbian Refining Company for the erection of a filling station was the 1st of July or the 3rd of July, when I signed the contract, and at that time I was building a shed at the compress in Rosebud. We had had various talks about the contract, and Mr. White came over from Temple and came where I was at work, and told me he wanted to close up the contract for the filling station, and told me that they had everything all right to contract it and put it up, and told me the money and everything was all right. I did not want to leave my work and fool with it, and he told me everything was all right for me to go ahead, and I went with him uptown, and we fixed the contract, and he wrote it out and a bond with it, and we went over to the Planters' National Bank and signed it up, and the question came up about a bond for protecting the lumber man, and he (White) stated that they had the money there in the Planters' National Bank, and we were in the Planters' National Bank at that time, and he required me to give bond, and I gave bond on it and went ahead and signed up everything, and he went on back to Temple, and I went ahead and put in the station, and he told me, he asked me that day not to put the cement floor down until after the plumbing was done for the filling tank, and he was gone a good while, and I was stopped waiting for him to come back to bring the plumbing stuff, as it was not in my contract at all. He came back and told me to go ahead and place the piping and showed me where to put it — air pipe and oil pipe and gas pipe — and I went ahead and finished the contract, and I notified them it was done and that they could send their construction engineer and settle for it, and they wired me that Mr. White's time was occupied and it would be the last of the week before he would reach me, and he never did come.

"He told me the money was already fixed when he came down where I was working and said it was in the Planters' National Bank. He told me he had the money to pay the contract with. We went over to the Planters' National Bank with the contract and bond, and while we were in there the question came up about the bond, and he said it would be protected by the money in the bank, and he said the purpose for which he placed the money in the bank was to pay the contract.

"My contract reads that they were to pay me 80 per cent. of it after two weeks for the labor done and material; yet he never did come up to see it, and I drawed a draft on them and sent it down, and they wouldn't pay it, and I thought they would pay it out of that. I remembered it was to be paid out of that; I didn't suppose they would send the money up there from Houston when they had the money to pay it out. When Mr. White came down to the compress and told me that the money was in the Planters' National Bank, I relied on that statement and representation, and only because they were an out of town firm and I did not know anything about them, and with the construction engineer's name on the paper I thought it was sure good. I don't suppose I would have signed the contract and gone on with the work had I not been relying on that representation. Him being a stranger, it made me safer when he told me he had the money there. I was down at the compress when he came down there, and I was busy, and I didn't care to fool with it then I did not think. He stayed down there a couple of hours before I went to town with him. I didn't care whether I took it or not. The thing that made me go to town and take up the matter of contract with him was when he told me it was all right and the money was in the bank; that made the difference with me; it looked like it was ``plum' safe to go ahead and make it. I didn't have any knowledge or notice that that Houston National Exchange Bank had any claims on the fund. I didn't know anything about the Houston National Exchange Bank having any claim on it or anybody else until this case came up. The first thing I knew about it was when the Houston National Exchange Bank at Houston claimed the money.

"Q. At the time you got out the writ of garnishment on the Planters' National Bank, I'll ask you whether you had notice of that at that time or prior to that time? A. No, sir.

"Q. That is the case you are talking about, the garnishment of the Planters' National Bank? A. Yes, sir. It was after that, and they never did say why they would not pay the draft, only they would pay it in a few days; they even phoned me that they would pay it in a few days.

"The amount of the contract was $2,000. I carried that contract out according to the specifications and plans, and Mr. White came and looked over it once and marked it O. K. as far as I had gone with it.

"I sent these drafts to the Columbian Refining Company for collection. I had the Planters' National Bank to do it, and the Planters' National Bank went on and forwarded my draft to Houston, and they never said a word to me about why it wasn't paid, and did not say anything about the claim of the Houston National Exchange Bank. Altogether I forwarded two drafts, and Mr. Donaldson fixed up the drafts for me at the Planters' National Bank and sent them."

A. DeZavala testified for the Houston National Exchange Bank as follows:

"My name is A. DeZavala. I am active vice president of the Houston National Exchange Bank of Houston. I have occupied that position since about April of last year up to the present. I am acquainted with the officers or representatives of the Columbian Refining Company, and during that period of time they were customers of the Houston National Exchange Bank and did some business with us. As to whether or not we had any dealing with the Columbian Refining Company some time the latter part of April or the early part of May with reference to the purchase of a certificate of deposit which was issued by the Planters' National Bank of Rosebud, I will state that we did. It was along in March or the latter part of March or the first of April that they called and requested that we purchase from them a certificate of deposit of $4,100 of the Planters' National Bank of Rosebud, and of course knowing the bank as I did we purchased that certificate. The certificate, if I remember, was a $4,100 certificate, dated the latter part of March, the 27th of March, and ran for three months, or about a three-months certificate, and I think it drew 3 per cent. interest from date, and we purchased that certificate plus that 3 per cent. and a little extra, which made it 8 per cent. for us on the investment. We paid the money to the Columbian Refining Company in cash.

"Q. Look at that certificate and state whether that is the terms identical to the terms and the amount of the certificate. A. I would say that this is an exact copy of it, except the date, number and amount. When this certificate for $4,100 became due three months after the date, approximately June 27th, we put it in the regular course of collection for the payment of same and the interest to the bank at Rosebud, and, as I remember, we got a wire from the bank refusing it. I think my attorney has a copy of that correspondence. The date of that wire was October 2d, and that occurred the last of June or the first part of July — the last of June I am quite sure. On June 30th payment on the time certificate of deposit on the Planters' National Bank was refused and signed by the First National Bank of Rosebud, the bank to whom we forwarded our bill for collection. Naturally we were surprised at a National Bank refusing to pay on a certificate of deposit, and I think we took the matter up with the bank, and we demanded payment as innocent purchasers. I don't know whether he told me the account was garnisheed or not, but still we demanded payment. After we discussed it with our attorneys, it wasn't paid for six, eight, or ten days. The attorneys and advisors for the bank and one of the members of the Columbian Refining Company had an agreement to pay us half of it and issue a new certificate for $2,000 for three months and bearing 3 per cent. We had no disposition to push the matter and we accepted the $2,000 and the new certificate and liquidated that matter which was past due and in our file. This certificate of $2,000 that has been introduced in evidence was indorsed and delivered to the Houston National Exchange Bank. We purchased the certificate and was part of the $4,100 payment that was issued by the Columbian Refining Company and indorsed properly by them to us, and of course the certificate of deposit was delivered to us. The Houston National Exchange Bank has been the holder of that, and it has been in our files, and we are still the owners. After receiving quite a bit of correspondence, I called the Planters' National Bank, as the note belonged to me, and I think I called them first, concerning the negotiations and payments of this certificate, and by way of extension I talked to the Columbian Refining man and also to the bank, and they told me they would settle it this way, me being the holder of the $4,100 cash, and he told me he would issue a new certificate for $2,000 for three months, and that was accepted by the Houston National Exchange Bank, and it is still the holder of that certificate, and it has not been paid, nor any part of it. Legal demand has been made for its payment.

"The first information I had that these first certificates would not be paid was when I received a telegram dated June 30, 1920, dated Rosebud, Tex., from the First National Bank, stating that the bank refused.

"Q. To refresh your memory, isn't it a fact that you saw a letter dated June 20, 1920, addressed by the Planters' National Bank of Rosebud to the Columbian Refining Company of Houston? A. No, sir; I remember seeing that letter, but it was after forwarding the certificate. This telegram here that is addressed to E. A. Donaldson, at Rosebud, and dated the 29th, ``Abaco neckband your letter requesting renewal this certificate. Unless remittance or your wire covering to effect you will honor this certificate here tomorrow morning, other action will be taken,' was the first. Evidently I saw the letter addressed to the Columbian Refining Company, and immediately when I saw it I wired the bank. I will say the first date was June 29th, and that's when I wired the bank. I haven't the original of that letter; I never saw this letter before and never heard of it. I addressed the telegram that is dated June 29th to the Planters' National Bank. ``Abaco neckband' is a code used by the banking association and refers to our collections if I remember clearly — I haven't the book before me — that I just read was June 26th my telegram referring to the letter of October 25th, which letter you haven't shown me yet. June is the sixth month, and the letter I just read was dated Rosebud, June 26th. My telegram is in answer to the letter I saw in answer to your letter of June 25th to Columbian Oil Refining Company asking for renewal of the certificate.

"Counsel to the Witness: Here it is — June 25th? A. This is still not the letter, the original letter addressed to the Columbian Refining Company you have not shown me yet, the one I sent this wire to.

"Counsel to Witness: This is the 25th letter you are talking about? A. That is a copy of the letter of the 25th; that's the letter I answered with a wire. After reading this letter of the 25th, I sent them a wire on the 29th. I received a wire from the Planters' National Bank on the 29th stating that they refused payment at that time of the certificate issued to the Columbian Refining Company for reasons stated. We bad a conversation that same day by wire, but no reason was stated at that time; we did not know; the wire did not cover. We possibly had a conversation over the phone that same day. About the 30th we received a letter from the Planters' National Bank dated June 29th.

"Counsel to Witness: Read that letter. (Witness reads letter of June 29th before jury, which is as follows: ``Rosebud, Tex., June 29, 1920. Attention, Mr. DeZavala. Houston National Exchange Bank, Houston, Texas — Sirs: This letter confirms our telegram to you to-day as follows: "We refuse payment at this time of certificate issued to Columbian Refining Company for reasons stated." We are refusing to pay this certificate to you because of the last clause in the certificate, which reads: "this certificate is not subject to check and is not negotiable." The Columbian Refining Company knows why we are refusing the payment of this certificate, and we must ask that you go back on the indorsers for redress. Yours truly, E. A. Donaldson. Cashier.'

"The word ``cashier' is printed and not signed by the officer of the bank. I did notice it as being a letter from the bank, and it referred to the telegram I received the day before from the bank. My first recollection was that it was about the 29th of the month, which is shown by the telegram and letters; that's the first recollection we ever had. On June 29th I wrote a letter to Mr. E. A. Donaldson, cashier of the Planters' National Bank.

"Q. In this letter you said, ``this matter will go into the hands of our attorney and also to both the state and American Bankers' Association within a few days,' and ``payable to the order of the Columbian Refining Company, payable to the order of themselves in current funds and on the return of this certificate properly indorsed.' That being the case, and as the certificate is returned and properly indorsed, it is now up to you to pay same and pay it promptly. Were it not for the fact that I have before me a certain letter written by you, Mr. Donaldson, as cashier, dated June 25th, and addressed to the Columbian Refining Company, voluntarily requesting that they allow you to renew this certificate, and if it is agreeable that you will pay them the same rate of interest and to send it in and you will send them a new certificate together with a check for the accumulated interest, I might be of the opinion that there was some sort of a contract existing between you; but with this fact, and with the further assurance of the fact from the Columbian Refining Company and their officers that there is no such contract or understanding existing, but that they did intend and yet intend to build a station there, but this money was not to be left there until the station was completed, and with these things clearly in my mind, there can be no misunderstanding or doubt that this certificate must be paid on its presentation. I am, therefore, to-day forwarding it to your neighbors, the First National Bank of Rosebud, with instructions to present same, and if not paid to protest and return. If it is a matter with you of temporary funds to take care of this certificate, you should certainly have advised us or the Columbian Refining Company of that, but under the circumstances there is nothing for me to do, being the innocent purchaser of this certificate, but demand payment of same, as above stated. Attached to the certificate is a letter from the Columbian Refining Company demanding of you payment of this certificate. Please give this matter your prompt attention and oblige, yours very truly, August DeZavala, Vice President.' You wrote that? A. Yes, sir. When the Columbian Refining Company showed me this letter the day before, as soon as we got the wire we wanted to know what it was, and we expressed a surprise that the bank had turned down the certificate, and we wanted to know what it was. We purchased the certificate as a good purchase. We purchased it from the Columbian Refining Company as we would others. At the time I wrote this letter, I inquired of the Columbian Refining Company to know if that money left by them was in the Planters' National Bank, and I made further inquiry of the bank. I received a letter, I think, from the Planters' National Bank dated June 30th.

"Counsel to Witness: Read that (hands letter to witness). A. ``Sheet Number One. Now Mr. DeZavala, I want to say that the only object we have in refusing to pay this certificate is, that the Columbian Refining Company agreed that this money should not be withdrawn until the station was built at this place, and we made this certificate due 90 days, after their agent had said that the station would be complete within 30 days, but we would suggest that we make later so as to give them plenty of time. Each person who bought this stock was told that the money would not leave the town, but would be put into the buildings as specified. We issued a certificate that was nonnegotiable, and we do not know you or the bank you represent in this transaction, but we are dealing with the Columbian Refining Company. We have again refused payment of this certificate to the First National Bank here to-day for the reasons already stated. I can say to you that this certificate will be paid when this company has complied with their contract, and as their engineer is on the ground I feel that they are going to do something soon. As far as this bank being short of funds, I want to say that we keep money on hand to take care of all maturing obligations, and there has been no time that we could not have paid this certificate, so far as the finances are concerned. I would like to suggest to you that you use your good office to spur the company up and let us end this matter.' I received that letter; I'm sure that is a correct copy. That proposition was received the 1st of July. After that time we accepted from the Columbian Refining Company the certificate already introduced in evidence for $2,000; that matter hung fire for some eight or ten days, and an agreement was made, and they paid us $2,000 cash, and new certificates were made for the balance of it. This certificate was dated about July the 8th. I think it was received directly from the bank, or it might have been the Columbian Refining Company that brought it to me. We know that they gave us a $4,100 certificate, and the bank would not have issued a new certificate without delivering that certificate issued for the Columbian Refining Company and indorsed by the Columbian Refining Company to us. The Planters' National Bank wrote me on June 30th, if that's the original letter, which it appears to be, that they did not know us in the transaction and they were dealing with the Columbian Refining Company. With reference to the telephone conversation, I talked to Mr. Donaldson, possibly on more than one occasion. It is a fact that he told me over the phone that he would pay to the Columbian Refining Company so much cash and renew the certificate to them; he did not make that statement; he knew the certificate was ours. He was to pay us $2,000 and release $2,100 and issue a new certificate to cover our indebtedness, and that was the extent of our phone conversation — which we accepted. I did not say that I talked to the representative of the Columbian Refining Company, who was in Rosebud, that day.

"Q. I understood you to say you talked to Mr. Donaldson and a member of the Columbian Refining Company the same day? A. Yes, sir. At the time we received the $2,000 certificate from the Columbian Refining Company, we did not know that the Planters' National Bank was refusing to pay out this money on the ground that it was left there with instructions that it be paid out for the erection of the filling station. I could not give the exact date of how long the bank held that original certificate a few days after its date; after March 27th, 1920; a very few days afterwards after the date of the original certificate of $4,100."

Several letters and telegrams passed to and from Mr. Donaldson, acting for the Rosebud Bank, and the refining company and appellant, Houston National Exchange Bank, but it was not claimed in any of them that the Rosebud Bank held the money in question as a trustee for the plaintiff Sapp, or for any one else other than the persons who had purchased stock in the refining company. On June 25, 1920, Mr. Donaldson, as cashier, wrote to the refining company, stating that the certificates of deposit issued by his bank to the refining company would soon be due, and offering to renew the certificates and hold the money for the refining company for a longer period of time, at the same rate of interest. It was also stated that the Rosebud Bank was having many inquiries as to when work would begin on the filling station, and that those who had invested money with the refining company were getting very restless and asking that company to advise the Rosebud Bank upon that subject, in order that it might try to keep the Rosebud investors satisfied; and it contained this sentence:

"Your letter addressed to the stockholders as to buying some of the bonds that you are issuing are falling on barren ground, as they feel that you should begin work before asking them to subscribe further."

On the following day Mr. Donaldson wrote to the refining company as follows:

"We have returned the certificate of deposit for $4,100.00, given you by this bank, unpaid. We must decline to pay this, or the other one for $900.00 that will mature in a few days, until you comply with the understanding that we had with Mr. Huff, viz.: That this money was to be used in the construction of the filling station at Rosebud, and was left here in good faith of your intentions to construct this filling station according to the plans that you submitted when that stock was sold.

"You have promised to begin work at different times but nothing has been done. All we ask is that you get busy and build this station, after which we will pay these certificates, but until you do so we must decline payment.

"Your representative told the people that had subscribed this money that it was on deposit in this bank and would not leave town until the station was constructed, and he had this understanding with us, and it is for these reasons that we refuse to pay."

On June 30th, Mr. Donaldson, as cashier, wrote to Mr. De Zavala, the vice president of the Houston Bank, and said:

"I want to say that the only object we have in refusing to pay this certificate is, that the Columbian Refining Company agreed that this money should not be withdrawn until the station was built at this place, and we made this certificate due in 90 days, after their agent had said the station would be complete in 30 days, but he would suggest that we make later so as to give them plenty of time. Each person who bought this stock was told that the money would not leave the town, but would be put into the buildings as specified. We issued a certificate that was nonnegotiable, and we do not know you or the bank you represent in this transaction, but we are dealing with the Columbian Refining Company. We have again refused payment of this certificate to the First National Bank here, to-day, for the reasons already stated. I can say to you that this certificate will be paid when this company has complied with their contract, and as their engineer is on the ground, I feel that they are going to do something soon."

If the proof shows that there was any trust, it was only for the benefit of those citizens of Rosebud who subscribed and paid for stock in the Columbian Refining Company; and there was an entire failure to prove that Mr. Sapp had either subscribed or paid for any such stock, and there is no claim in either pleading or testimony that Mr. Sapp had acquired any interest under any of the Rosebud subscribers for stock. Furthermore, the undisputed proof shows that if the Rosebud Bank held the money referred to in trust, for the benefit of certain subscribers to the stock of the Columbian Refining Company, the trust ceased to exist before the case was tried. If any such trust existed, it was for the purpose of securing the construction of the filling station in Rosebud, and the undisputed proof, as well as the allegations in appellee Sapp's pleading, show that the improvement referred to had been completed before the case was tried. Therefore it would seem that if the persons in whose favor that trust existed had sued the Rosebud Bank to enforce the trust, or for damage for its breach, it would be sufficient answer for the Rosebud Bank to show that it had held the money until the filling station was erected, and the trust thereby terminated. The Rosebud Bank, the garnishee, filed no reply to the plaintiff Sapp's averment in his pleading that the filling station had been completed, and offered no testimony to controvert his evidence to that effect; nor did it ask to have the citizens of Rosebud who had purchased stock from the Columbian Refining Company made parties to this proceeding. Hence I conclude that the garnishee does not now claim to hold the money in question for the benefit of the subscribers referred to.

Mr. E. A. Donaldson was the cashier of the appellee Rosebud Bank, and represented it in the transaction under consideration; and while he and some other witnesses stated that Mr. Huff, who represented the Columbian Refining Company, said that all the money paid by the citizens of Rosebud for stock in the Columbian Refining Company would be kept in Rosebud and used for the construction of the filling station referred to, he said more than once that the agreement between the Columbian Refining Company and the Rosebud purchasers of its stock was that the money referred to should not be withdrawn from the bank until the station was completed.

No witness testified that part of the consideration which induced certain citizens of Rosebud to purchase stock in the Columbian Refining Company was a promise on the part of the refining company that the money paid for such stock should be used to pay for the construction of the filling station; and the mere fact that it may have stated to such purchasers that the money referred to would be used for that purpose did not constitute a binding contract to so use it. Even if such promise was made, it was not shown that there was any consideration therefor. It was not shown that the stock which the Rosebud citizens purchased in the refining company was not worth all they paid for it; nor was it shown that the refining company promised to use that money to pay any debt which the Rosebud subscribers owed or might become liable for. Therefore it does not appear that any harm has resulted to the subscribers for stock by the failure of the refining company to pay Mr. Sapp for the construction of the filling station. But, as said before, the undisputed testimony coming from Mr. Donaldson, the agent and manager of the garnishee, the Rosebud Bank, shows that the money was deposited in that bank upon the express agreement that it was not to be withdrawn until the filling station was completed, and the plaintiff Sapp alleged in his pleadings and proved by his own testimony that the filling station had been completed before the case was tried. The completion of that improvement terminated the trust under which the garnishee's manager testified that the money was placed in the garnishee's possession.

In stating that the undisputed proof shows that if any trust at all existed it was only for the purpose of securing the completion of the filling station, it has not been overlooked that some of the other witnesses testified that Mr. Huff, the representative of the refining company, who was soliciting subscriptions to the stock of that company, stated that the money which might be paid by citizens of Rosebud for stock in the company would be placed in the bank and used for the construction of the filling station. Such statements may have been made, and yet when the money was deposited in the bank, the undisputed proof shows that the deposit was made upon an express contract with the bank, as testified to by Mr. Donaldson, that it would not be withdrawn until the filling station was completed; and if such was the contract under which the deposit was made, and as the filling station has been completed, the garnishee bank owes the balance of the money so deposited to appellant, the Houston Bank, which has acquired all the rights the refining company had against the garnishee.

In fact, Mr. Donaldson testified that he told Mr. De Zavala that the money was placed in the garnishee bank with the express understanding that the Columbian Refining Company would leave it in the bank until the building was completed. Furthermore, in testifying about his agreeing to pay $2,100 on the original certificate of deposit, and issuing another for $2,000, he said:

"I agreed to release $2,100 of this and reserve the $2,000 to be held back until the filling station was completed, and he (Huff) assured me that was entirely satisfactory."

That testimony, given by the garnishee's agent and manager, who acted for it in all matters under consideration, constitutes, in legal effect, an admission by the garnishee bank that if any trust existed it was not for the purpose of securing all debts the Columbian Refining Company might incur in the erection of the filling station at Rosebud, but that it was for the benefit of the citizens of Rosebud who subscribed to the stock of that company, and its object was to secure the erection of a filling station, regardless of how or when the Columbian Refining Company paid for such station. It is quite clear that the object of the citizens of Rosebud who negotiated with Mr. Huff, the agent of the Columbian Refining Company, and purchased stock in that company, was to secure an additional improvement in Rosebud, without reference to how or when that improvement was paid for. The improvement has been made, and it was not shown that any lien exists thereon; and if the agent of the Columbian Refining Company made a specific promise to the citizens of Rosebud referred to that it would use the money collected from them to pay every one who furnished labor or material for the construction of that improvement, no injury would result to such citizens by breach of that promise, because a failure to pay a debt due A. results in no legal injury to B., although the debtor may have promised B. that he would pay such debt to A. with money received from B.

The testimony does not support the finding of the trial court that the fund in question had been assigned to the plaintiff Sapp. The appellant, Houston National Exchange Bank, was no party to any transaction which occurred between the plaintiff Sapp and others concerning the fund in question, and therefore its rights previously acquired were not affected by what may have transpired among the refining company, the garnishee, and the plaintiff Sapp. Besides, the testimony as to what transpired between them fails to show any agreement to assign or create a lien upon that fund in behalf of Sapp. When analyzed, it merely amounts to this: When the question of giving bond was under consideration, Sapp, at the time of executing the bond to secure the refining company, inquired of the latter's agent how he (Sapp) would be secured, and the latter told him, in the presence of Mr. Donaldson, the agent of the garnishee, that the refining company had money on deposit in the garnishee's bank, for the purpose of paying for the filling station; and Mr. Donaldson, the garnishee's agent, confirmed that statement. Those statements may have misled Mr. Sapp, and induced him to sign the contract without any further guarantee for his protection, but it did not and could not assign to him the fund in question, which the refining company had already assigned to appellant.

The writer cannot concur with the holding in the majority opinion to the effect that appellant by accepting the $2,000 certificate of deposit, dated July 8, 1920, which was a few days after the plaintiff Sapp made his contract with the refining company, thereby lost all the rights it acquired by its former purchase of the original certificate of deposit for $4,100. While it is true that Mr. Donaldson stated to appellant that inasmuch as the $4,100 certificate stated on its face that it was not negotiable he did not recognize appellant as having any right to that certificate, although it was made payable to the order of the refining company and was indorsed by that company, he further testified that the original certificate was sent to his bank for payment; that he notified the Houston Bank that the claim would not be paid at that time; that he took the matter up with the refining company, and, among other things, he said:

"I wrote a letter up there and they (Houston National Exchange Bank) accepted the proposition; they accepted the $2000 certificate and the $2,100 in cash was paid, and the $2,000 certificate was given as a basis for a compromise, and afterwards the certificate was sent to us. At the same time Mr. White came up and represented to me that they were going ahead and build the station and fulfill the contract and showed me evidence that they were shipping the stuff there. We first reached the agreement as to the payment of cash, and by way of compromise I gave them a new certificate, but I would not issue the second certificate until the first had been returned to me. * * *

"As to whether we got the $4,100 certificate when we arranged to settle, I will state that it was sent to us by the Houston National Exchange Bank. As to how we sent the new certificate, I will state I think we attached our draft for $2,100 and certificate of deposit payable to the order of the Columbian Refining Company. That's my recollection of the matter; I think the draft was made payable to the bank; we bad to make it payable to them because it was sent to the bank."

The testimony given by Mr. De Zavala, who represented appellant, corroborates Mr. Donaldson's testimony, and, without repeating it here, shows clearly that the acceptance of the $2,000 certificate dated after the plaintiff Sapp had made his contract with the refining company, was accepted by appellant in furtherance of an agreement to extend the time for the payment of the balance due on the $4,100 certificate; the garnishee bank having paid to appellant $2,100 upon that certificate. True it is, the $2,000 certificate, like the original $4,100 certificate, was made payable to the order of the Columbian Refining Company; but, inasmuch as that company indorsed it to appellant; the writer fails to understand why that fact can adversely affect the interests of appellant. The majority opinion does not assign any reason for holding that by accepting payment of over half of the original debt owed by appellant, and extending time for the payment of the balance, appellant thereby surrendered any rights it acquired by its purchase of the original certificate, which purchase occurred before the plaintiff Sapp made any contract with the refining company.

Counsel for appellant also contend that, conceding the certificate of deposit sued on by appellant was a nonnegotiable instrument, the Houston Bank acquired it subject only to such defenses as the issuing bank had; and an assignment of that certificate to a purchaser before maturity, for value and without notice, was not subject to any equities or defenses residing in any third party. The rule that the purchaser of nonnegotiable paper takes it subject to defenses which might be urged against its assignor does not extend to or include defenses arising subsequent to the date of the assignment, nor does it include equities or defenses residing in third parties. Taylor v. Calloway, 7 Tex. Civ. App. 461, 27 S.W. 934; Stillson v. Stevens (Tex.Civ.App.) 23 S.W. 322; Welch v. Renfro,42 Tex. Civ. App. 460, 94 S.W. 107; Ruling Case Law, vol. 2, pp. 629-632, inclusive. The last authority states:

"An assignee of nonnegotiable paper normally takes it subject to all equities, rights and defenses which could have been urged against it in the hands of the assignor at the time of the assignment.

"But the general principle that an assignee takes it subject to all equities which existed against the assignor, is generally understood to mean the equities residing in the original obligor or debtor, and not those residing in some third person against the assignor."

Before concluding, the writer deems it proper to say that he is not to be understood as holding that the testimony discloses that the fund in question was placed in the garnishee bank as a trust fund for the benefit of any one, and could not be withdrawn by the Columbian Refining Company, or its assignee, without the consent of the beneficiaries in the trust. In my opinion, if the testimony discloses any trust at all, it was for the benefit of the Rosebud subscribers to the stock of the refining company, and not for the benefit of those who might extend credit to the refining company for the construction of the filling station. If the filling station had never been constructed, and the refining company had notified the Rosebud subscribers to its stock that it would not make that improvement, it may be that their only remedy, if they had any, would have been an action for damages. However that may be, it seems quite clear to me that the evidence fails to disclose any trust in favor of any one who might thereafter, in whole or in part, construct the filing station. I cannot believe that it is a sound proposition of law that when one person sells property to another his statement or promise to the purchaser that he will use the money so received for a particular purpose fastens upon that fund a trust for the accomplishment of that purpose. It is true that an agreement between A. and B., based upon a sufficient consideration to the effect that B. will pay to C. a debt owing by A., is a valid contract, and may be enforced by C.; but this case does not come within that class. The result of the decision in this case is that when money is deposited in a bank, and the bank executes a written obligation to pay the same to the depositor or his order, that if the bank is notified that the depositor intends that the money referred to shall only be used to pay certain debts which the depositor expects to incur, a trust is thereby created in favor of such future creditors, then the bank cannot lawfully pay the money to the holder of its written obligation to pay it. Such holding, It seems to me, is not only unsound, but if established as the law will result in much confusion and harm to the banking business. If it be said that in this case the bank orally consented to hold the money as a trust fund, my answer is that the contract between the bank and the depositor was reduced to writing, and by the written instrument, which constituted a promissory note, the bank did not agree to hold the money for the benefit of any one except the depositor and its assigns, but did promise to pay it to them. See First State Bank of Otto v. Cohn, 247 S.W. 923, recently decided by this court.

The writer regrets the extent of this opinion, which seems to have been necessary in order to properly present the reasons for his dissent, which the statute requires a dissenting judge to do.