Bryan v. Citizens National Bank in Abilene , 1981 Tex. App. LEXIS 3937 ( 1981 )

ON APPELLANT’S MOTION FOR REHEARING

Bryan cites Favors v. Yaffe, 605 S.W.2d 342 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n. r. e.); Couch v. Babb, 423 S.W.2d 464 (Tex.Civ.App.—Beaumont 1968, writ ref’d n. r. e.); and Shotts v. Pardi, 483 S.W.2d 879 (Tex.Civ.App.—Corpus Christi 1972, writ dism’d), to support his argument that it will be presumed that he was a holder in due course. The cited cases, each of which was a suit on an instrument, are distinguishable. The instant case is not a suit on an instrument. The bank seeks restitution for money mistakenly paid. Texas has consistently followed the general rule that a payee, who has received money mistakenly paid, has the burden when sued for restitution, to plead and prove that he has in good faith changed his position in reliance on the payment. Capital National Bank in Austin v. Wootton, 369 S.W.2d 475 (Tex.Civ.App.—Austin 1963, writ dism’d); First-Wichita National Bank v. Steed, 374 S.W.2d 932 (Tex.Civ.App.—Fort Worth 1964, no writ); Central National Bank of Houston v. Martin, 396 S.W.2d 218 (Tex.Civ.App.—Houston 1965, writ dism’d); 40 A.L. R.2d 997. The same rule should apply when the payee seeks to defeat the bank’s common law restitution claim by contending that he is a holder in due course.

Bryan’s motion for rehearing is overruled.