Deport Hardware Co. v. First Nat. Bank of Paris , 1921 Tex. App. LEXIS 533 ( 1921 )

The first assignment of error is:

"The verdict of the jury is contrary to and wholly unsupported by any evidence whatsoever, in that there is absolutely no evidence to support the answer of the jury made to the first question submitted to them by the court: the undisputed evidence showing that after the receipt of the letters referred to in the first question that the First National Bank of Paris failed to take any steps whatever to advise the National City Bank of Chicago of the restrictions placed on the payment of the $5.350, and failed to exercise any care whatever to advise the National City Bank of the restrictions placed upon the payment of said money."

The appellee objects to the consideration of the assignment because "the issue made the basis of the assignment was not excepted to before the charge of the court was read." The objection of the appellant was incorporated in the motion for new trial. The assignment is and should, we think, be considered as a complaint of the verdict, as being without sufficient evidence to support it. And the complaint is, we think, to the extent that the evidence fails as a matter of law to support the verdict of the jury. It is believed that the assignment may legally be considered. Express Baggage Co. v. AbIon, 218 S.W. 1030.

Looking at the evidence from the stand-point of the parties and the duties and liabilities of each, it fully appears that the Deport Hardware Company wanted to pay $5,350 to W. R. Scott at Chicago for 10 Ford automobiles, and selected the National City Bank of Chicago as the agency to receive and pay over the money to W. R. Scott, conditioned upon his "delivery" to that bank of "signed bill of lading, covering 10 new model Ford touring cars complete, May and June motors, consigned to Deport Hardware Company." The order for the payment of the money by the National City Bank was to be in the form of and in accordance with a telegram, which was written out by the Deport Hardware Company, and which specified the condition upon which the money was to be paid over to W. R. Scott. The First State Bank of Deport, having no correspondent at Chicago, and under instructions from the Deport Hardware Company, procured its correspondent, the First National Bank of Paris, to send the telegram, and transmit the money, as instructed. The First National Bank of Paris consented, and undertook to send the telegram and transmit the money in accordance with the terms of the instructions. The wording of the telegram received and transmitted by the First National Bank of Paris plainly disclosed to the First National Bank of Paris that the Deport Hardware Company was unwilling to have, and did not authorize, the payment of the money to Scott except upon the condition that the bill of lading for the transportation of the automobiles be delivered by Scott to the bank making the payment to him of the money. The First National Bank of Paris, having consented to make the remittance of the money in accordance with the instructions which the telegram directed and empowered it to execute, was under the legal duty to use due care and diligence in performing the task which it has set itself to do. Did the defendant bank therefore under the circumstances exercise due care and diligence? It appears conclusively that the defendant bank was informed by the receipt of the letter of June 26 signed by the manager of the collection department of the National Bank of the Republic of Chicago that said bank had received the telegram of June 24, sent by the defendant bank to the National City Bank of Chicago. The letter was on the letterhead of the National Bank of the Republic, and literally set out the wording of the telegram sent by the defendant bank to the other bank. This letter also informed the defendant bank the telegraphic order to pay the money "will have our careful attention." And the defendant bank reasonably understood from the letter of June 25 from the National City Bank of Chicago that it had not received the telegram of June 24. In this letter mention was made only of receipt of the draft, and no mention was made of the telegram or its receipt. The defendant bank knew then that the telegraph company had negligently failed to deliver to the National City Bank the telegram exhibiting to it the restrictions and conditions required for the payment of the money to Scott. And the defendant bank reasonably knew in the circumstances that on account of the misdelivery of the telegram the National City Bank of Chicago would not have information, unless further advised, of the restrictions and condition placed on the payment of the $5,350 to Scott. And it conclusively appears From the evidence that the defendant bank did not, after knowing of the misdelivery of the telegram, take any steps to advise the National City Bank of Chicago of the condition and restriction upon the payment of the money over to Scott, and that on July 5 the National City Bank of Chicago, not having received any instructions in accordance with the telegram, paid Scott the money. The proximate cause of the loss, it would conclusively appear from these facts, was the omission on the part of the defendant bank to advise the National City Bank of Chicago, having ample time to do so after knowledge of the misdelivery of the telegram, of the condition and restriction placed upon the payment of the money to Scott. It does appear, as contended by appellee, that the letter of the defendant bank, in inclosing the draft, used the words "Pay Scott as per wire of June 24 $5350.00." Even so, the knowledge on the part of the defendant bank that the telegram had miscarried would put it upon notice and require it to discharge the duty of acquainting the National City Bank of Chicago of the instructions and condition contained in the telegram. The negligence, if any, of that bank would not avail the defendant bank, sued, as it is, for its own negligence proximately causing the loss. And the petition of the plaintiff is not holding, nor undertaking to hold, the defendant bank for any default on the part of the National City Bank of Chicago.

The agreement on the part of the First State Bank of Deport to relieve the defendant bank from liability for the transmission would not, and does not, relieve the defendant from omissions negligently done by it. And no other ground of negligence than personal omission is pleaded against defendant.

The judgment is reversed, and judgment is here rendered in favor of the plaintiffs for the sum sued for, and for all costs of court and of appeal.