Provident National Bank v. C. D. Hartnett & Co.

EIDSON, Associate Justice.

This is an action brought by the Provident Rational Bank of Waco in the court below against appellee and Early, Foster & Co., upon a draft drawn, with statement of account attached, by Early Foster & Co. against appellee, the draft being for the sum of $360.60, and the statement of account attached thereto showing appellee to be indebted to the said Early, Foster & Co. in the amount of the draft.

Appellee pleaded its privilege to be sued in the county of its residence, which was Parker County. Early, Foster & Co. pleaded that appellee was indebted to them in the amount of the draft and account, and that they had assigned said account to appellant bank, and prayed that in the event the bank should recover judgment against them, that they should have judgment against appellee for the amount of such judgment. There was a trial before a jury and verdict and judgment rendered and entered in favor of the plaintiff against Early, Foster & Co. in the amount sued for, and, under a peremptory instruction- so to do, the jury returned a verdict in favor of appellee on its plea of privilege to be sued in the county of its residence, and judgment entered accordingly. The bank and Early, Foster & Co. have appealed the case to this court.

The principal question presented for our determination in this case is whether or not Early, Foster & Company were proper parties to this suit. Entertaining doubt as to the proper solution of'this question, we certified it to the Supreme Court for decision, and that court held that Early, Foster & Co. were proper parties to this suit. (Provident Nat. Bank v. Hartnett Co., 100 Texas, 214 .) Hence the court below erred in instructing the jury to find in favor of appellee, on its plea of privilege.

*275 The trial court also erred in not admitting, in evidence the draft drawn by Early, Foster & Co. upon the appellee in favor of appellant bank and the statement of account attached to said draft. As held by the Supreme Court, by drawing the draft on their debtor, the C. D. Hartnett Co., for the full amount of the debt claimed by them with the account attached, Early, Foster & Co. assigned to the Provident National Bank the said debt; and the bank had the right, upon protest of the draft, to hold the drawer of the draft and the debtor in the account responsible so as to repay to it the sum advanced upon the draft.

We do not think the unexpressed intention of the witness Foster at the time that the draft was presented to the bank and paid, was competent evidence in this case, and the exclusion of the testimony of said witness as to such intention was not error. The drawing of the draft with the account attached in favor of the bank and its payment by the bank, constituted the assignment, of the claim independent of the unexpressed intention of the assignor.

The special charge, refusal to give which is complained of in appellant’s fifth assignment of error, does not correctly state the law applicable to the question to which it relates. After the introduction in evidence of the draft, with the account attached, and proof of its payment by the bank and nonpayment by the drawee, the trial court would be authorized to peremptorily instruct the jury to find against the Hart-nett Company on its plea of privilege. It follows from what has been said above that the trial court erred in holding as matter of law that it had no jurisdiction of the Hartnett Company, and also in not permitting the witness C. D. Hartnett to be asked questions relating to the merits of the case.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.