Citations
- 135 S.W. 1142
Full opinion text
BOOKHOUT, J.
This suit was filed by the appellant, J. W. Kelley, in the county court of Hunt county, Tex., seeking to recover of and from the appellee, the Planters’ & Merchants’ National Bank, the sum of $500. It is alleged by the plaintiff in his petition that on the 29th day of May, A. D. 1908, defendant executed and delivered to S. F. Bowser, through plaintiff, its draft No. 4,462 in favor of S. F. Bowser for the sum of $500, drawn on the Chase National Bank of New York City. Plaintiff avers: That said draft as above described was sent to one John Hoffman of Little Rock, Ark., whom plaintiff had reason to believe and did believe was the agent of said S. F. Bowser. That said John Hoffman indorsed the name of the payee, S. F. Bowser, on said draft, or that said draft was so indorsed by some other person, at said Hoffman’s request, as follows: “Pay to the order of John Hoffman, S. F. Bowser.” That said indorsement was not made or signed by S. F. Bowser, the payee of said draft,''-or by any one authorized by said Bowser to sign same, but that said indorsement was forged and fraudulently made by some other person than the payee of said draft. Plaintiff avers further that John Hoffman cashed the said draft at the American Bank of Little Rock, Ark., which bank sent the draft to the National Bank of Commerce of New York City, who paid same to the American Bank of Little Rock, Ark. That later the National Bank of Commerce presented the draft to the Chase National Bank of New York City, the last-named bank being the original drawee of the draft, and that said draft was taken up and paid by said drawee, who then returned the same to the defendant herein, together with other canceled checks and drafts. That plaintiff herein got possession of said exchange or draft and sent same to S. F. Bowser, the original payee herein, who denied having indorsed said exchange for him. That said S. F. Bowser, payee of said draft, indorsed and assigned all his interest in said draft to this plaintiff as shown by indorsement on the back of said draft. That plaintiff then deposited said draft in his bank for collection, to be forwarded to the Chase National Bank, drawee, which bank refused payment when draft was presented, and refused to accept the said draft o'n presentation. Wherefore defendant became liable to S. F. Bowser on the execution of said ■draft or bill of exchange in the sum of $500, which interest has been assigned and transferred to this plaintiff. The defendant, the Planters’ & Merchants’ National Bank, filed pleadings, consisting, among other things, of general denial, and a plea setting up facts and circumstances alleged to show negligence on the part of the plaintiff, J. W. Kelley, in purchasing and handling the draft in the manner and form he did. The plaintiff further filed a supplemental petition, consisting of exceptions and denials of the facts alleged in defendant’s answer. The trial court rendered judgment in favor of defendant, and against the plaintiff, to which action of the court the plaintiff, J. W. Kelley, excepted and perfected an appeal.
The cause was tried by the court without a jury, and conclusions of fact filed as follows:
“(1) On the 29th day of May, 1908, J. W. Kelley procured from the defendant, Planters’ & Merchants’ National Bank at Commerce, Tex., the following draft, paying therefor the sum of $500: ‘The Planters’ & Merchants’ National Bank. No. 4462. Original. Commerce, Texas, May 29th, 190S.