
    HOME NAT. BANK OF BAIRD et al. v. FIRST STATE BANK & TRUST CO. OF ABILENE et al.
    
    (Court of Civil Appeals of Texas.
    Nov. 5, 1910.
    On Motion for Rehearing, Jan. 7, 1911.)
    1. Banks and Banking (§ 140) — Payment of Checks — '“Acceptance.”
    An “acceptance’ is an engagement to pay according to the tenor of the acceptance, and, while the acceptance is usually evidenced by the word “accepted” written on the bill and signed by the drawee, it need not be in writing, since any act or word evidencing a promise to pay is sufficient, and a statement by a bank officer that checks drawn by a depositor are all right if the signatures are all right is not equivalent to a promise to accept or certify the checks.
    [Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 386-388; Dee. Dig. § 140.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 53-57.]
    2. Banks and Banking (§ 155) — Payment of Checks — Obligation of Bank to Payee or Holder — Acceptance of Check — Evidence.
    Evidence held, insufficient to show a bank’s acceptance, or promise to pay checks drawn by a depositor.
    [Ed. Note. — For other cases, see Banks and Banking, Dec. Dig. § 155.]
    On Motion for Rehearing.
    3. Banks and Banking (§ 140) — Payment of Checks — Obligation of Bank to Payee or Holder — Estoppel.
    Where a bank officer has stated to the payee or holder of checks drawn by a depositor that they are all right, the bank is not estopped to resist liability where the checks were not taken on the faith of such statement.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. § 389; Dec. Dig. § 140.]
    Appeal from District Court, Taylor County; T. L. Blanton, Judge.
    Action by the Home National Bank of Baird, Tex., against the First State Bank & Trust Company of Abilene, Tex. Judgment for the defendant, and the plaintiff appeals]
    Affirmed.
    Hardwicke & Hardwicke and F. Theodore Mack, for appellant. T. P. Davidson and J. M. Wagstaff, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Application for writ of error dismissed by Supreme Court.
    
   SPEER, J.

This is an action by the Home National Bank of Baird, Tex., against the First State Bank & Trust Company of Abilene and others seeking a judgment on two certain cheeks drawn by one J. T. Barnett against the Abilene • bank, in which the liability of the Abilene bank is based upon an alleged acceptance by said bank, a determination of which question is decisive of this appeal.

An “acceptance” is defined to be “an engagement to pay the bill according to the tenor of the acceptance.” Cox v. Nat. Bank, 100 U. S. 704, 25 L. Ed. 739. And this acceptance or promise to pay, while usually evidenced by the word “accepted” written on the bill and signed by the drawee, need not be in writing, since any act or word evidencing a promise to pay the bill according to its tenor is sufficient to constitute an acceptance. Boyce v. Edwards, 29 U. S. 111, 7 L. Ed. 799; Milmo Nat. Bank v. Cobbs, 115 S. W. 345. Bearing in mind this definition of an acceptance, we will examine the testimony which appellant insists shows an acceptance by the Abilene bank. Appellant’s testimony standing alone would show an ac-' ceptance; but the testimony of Shelton, vice president of the Abilene bank, was as follows: “On the morning of February 4th (I was) called úp by phone by plaintiff bank in reference to the payment of these cheeks. It was between 8:30 and 9 a. m. before banking hours, before we had opened up; there being no one at the bank but myself. I did not know the name of the man who called me up. He told me his name, but I had forgotten it by the time I hung up the receiver. Anyhow, it was the Home National Bank. He called me up, and I understood him to say about the check for $974. I understood it was one check for $974 and some cents. He might have said checks. Did not give me the separate amounts. Gave total amount. Did not tell me to whom they were given. Told me checks were signed by J. T, Barnett. Asked me if the checks were all right. I told him to hold the phone, and I went into the vault, got out the ledger, looked at the account, returned to phone, and told him the checks were ail right if the signatures were all right. Think that was all I said. He asked me if we would pay the checks. I asked him what he said, and he again asked me if we would pay the checks. I thought I understood him to ask if we would pay the checks, but I did not know for sure and didn’t answer that. I hung up the receiver. Did not tell him we would pay the checks. Told him the checks were all right, if the signatures were all right. About 9 o’clock Mr. Davidson, director and attorney of the bank, asked me what amount Barnett had to his credit. He got the amount, went off, and returned in about 30 or 40 minutes accompanied by Mr. Wagstaff, who called me to the back office and told me the funds were obtained through fraud, or Barnett had stolen the cattle from which the money came, and, if we paid the money, Mrs. Sears would hold the bank for it.”

Upon this testimony we think a jury might fairly have found that the First State Bank & Trust Company did not promise to pay the checks in controversy. It is one thing for a bank to say that a check is good, and quite another in legal effect to promise to pay it. It is this promise that constitutes an acceptance and consequent liability. Springfield Bank v. Bank, 30 Mo. App. 271.

It is immaterial whether appellant is right or wrong in its other contentions on this appeal, if there was no acceptance by the Abilene bank.

All assignments are overruled, and the judgment is affirmed.

On Motion for Rehearing.

We cited Springfield Bank v. Bank, 30 Mo. App. 271, for our holding that a statement that a check was good was not tantamount to a certification, and on this motion counsel for appellant insists that this is contrary to the weight of authority, citing 1 Daniel on Neg. Inst. § 160Ga. That writer does say in the section cited that: “In the absence of any statutory provision on the subject, the mere verbal statement of the bank officer that the check is ‘good’ or a promise on the part of the bank to pay it will be sufficient to operate as certification and by way of estoppel, provided sueh statement or promise he communicated to the holder and! induce him to tahe the checlc.” (Italics ours.) There is no contention in this case that appellant took the checks on the faith of appellee’s statement that they were good. Its assistant cashier who transacted the business for it clearly shows by his testimony that he took the cheeks because of appellee’s promise to pay them. The case is not one of estoppel at all.

However, under the facts of the case, it was unnecessary for us to make the holding complained of, since appellee’s case does not rest alone on evidence that its vice president said the checks were “all right.” The evidence further shows that appellant’s assistant cashier twice asked if it would be paid, and the appellee’s agent refused to promise payment. This circumstance alone would support the court’s finding that appellee had not accepted or certified the checks.

Motion for rehearing overruled.  