First Nat. Bank v. Wm. Cameron Co.

Not being able to agree with the majority opinion in this case, I hereby enter my dissent.

The material facts are fully set out in the majority opinion.

I think the controlling question presented is whether or not the collection of the $980 check by appellant was completed at such time that it changed the relationship of principal and agent, existing between the parties, to that of debtor and creditor. I think it did not, because: (1) appellant having received the check in question from the Blooming Grove Bank "for collection and credit" to the deposit account of the Blooming Grove Bank during the banking holiday, and appellant having reserved the right to charge back any item credited to the account of the Blooming Grove Bank which it could not collect, title to said check did not pass to appellant bank; (2) on March 16, 1933, the date that appellant re-opened for business and at which time appellant credited the amount of the check in question to a regular deposit account maintained by the Blooming Grove Bank with it, it knew that under the rules and regulations in reference to the re-opening of banks after the bank holiday the Blooming Grove Bank could not be opened for business at that time; (3) on July 29, 1933, when appellant charged the deposit account of the Blooming Grove Bank with the amount of the proceeds of the check here in question and credited same on the past-due notes due it by the Blooming Grove Bank, appellant knew that all classes of banks which the government officials considered to be in proper condition to re-open at the close of said bank holiday, with reference to their former deposits and to carry on a regular banking business with reference thereto, had been permitted to re-open, and that the Blooming Grove Bank had not been permitted to re-open, with reference to its business prior to March 1, 1933. I think the forgoing undisputed facts would authorize the trial court to infer and conclude that the credit by appellant of the proceeds of said check on the indebtedness due appellant by the Blooming Grove Bank was not entered as an exercise of a debtor's privilege of offset until appellant had knowledge of insolvency and, in all events, of the restricted operations in reference to said funds of the Blooming Grove Bank; otherwise appellant would not have waited until July 29, 1933, to have so credited the proceeds of said check. (In a case tried to the court without the intervention of a jury, the appellate court will take the view of the evidence most favorable to the prevailing party. Green v. Noah, Tex.Civ.App. 24 S.W.2d 113, point 1, page 1115, writ dismissed.) I think the foregoing, facts distinguish this case from the facts in United States National Bank of Galveston v. Azar, Tex.Civ.App. 102 S.W.2d 242, relied upon in the majority opinion, for the reason that the rights of the parties were determined and fixed in the Azar case before they were put upon a restricted basis, and the rule announced in that case is not applicable to the facts in the case at bar. I think that the foregoing facts bring this case within the rule announced by the United States Supreme Court in Commercial National Bank v. Armstrong, 148 U.S. 50, 13 S. Ct. 533, 534, 37 L. Ed. 363, wherein it says: "If, before the subagent parts with the money, or credits it upon an indebtedness of the agent bank to it, the insolvency of the latter is disclosed, it ought not to place the funds which it has collected, and which it knows belong to a third party, in the hands of that insolvent agent or its assignee; and, on the other hand, such insolvent agent has no equity in claiming that this money, which it has not yet received, and which belongs to its principal, should be transferred to, and mixed with, its general funds in the hands of its assignee for the benefit of its general creditors, and to the exclusion of the principal for whom it was collected. * * * No mere bookkeeping * * * could change the actual status of the parties, or destroy rights which arise out of the real facts of the transaction."

My view is that the collection of the check and crediting of the proceeds by appellant under the undisputed facts were insufficient to terminate its agency, and I therefore think that the judgment of the trial court should be affirmed. See City Bank of Sherman v. Weiss,67 Tex. 331, 3 S.W. 299; O'Hara v. Texas National Bank, Tex.Civ.App.299 S.W. 649, point page 651, writ refused; Commercial National Bank of Hutchinson, Kansas v. Heid Bros., Tex.Civ.App. 257 S.W. 913, writ dismissed; Beane v. First National Bank Trust Co., 4 Cir.,92 F.2d 382, point page 385.