
    ODLE v. BARNES et al.
    (No. 807-4863.)
    
    Commission of Appeals of Texas, Section B.
    Nov. 23, 1927.
    1. Assignments <3=34£t — Draft of bank becoming insolvent for payment of check deposited for collection held not equitable assignment of funds in drawee bank entitling depositor to recover (Rev. St. 1925, art. 5947, § 189).
    Where- plaintiff deposited check drawn on bank in F. bank for collection, and F. bank forwarded check to E. W. bank, which refor-warded check to R. bank, which forwarded check to M. bank for collection, act of M. bank in drawing draft on F. W. bank in favor of R. bank did not constitute an equitable assignment of funds represented by draft to its credit in hands of F. W. bank to pay amount due plaintiff on cheek where at time of receipt of draft, order for payment had been countermanded by agent in charge of insolvent bank, and there were no circumstances saving case from Rev. St. 1925, art. 5947, § 189, to effect that check does not operate as assignment.
    2. Assignments <3=349 — Bank collecting check need not retain 'sufficient funds to pay check, where drawee bank became insolvent and order to pay draft drawn for cheek was coun- - termanded.
    Where plaintiff deposited check drawn on M. bank in F. bank for collection, and E. bank forwarded cheek to E. W. bank, which refor-warded check to R. bank, which forwarded check to M. bank for collection, and M. bank drew draft for payment of checks on E. W. bank in favor of R. bank, E. W. bank was not required to hold sufficient amount to pay amount due plaintiff and to remit same to him as such, where M. bank became insolvent and agent in charge countermanded order to pay draft.
    3. Assignments <3=349 — Payee cannot recover against bank collecting check where draft drawn in payment was not paid because of drawer bank’s insolvency.
    Where plaintiff deposited .cheek drawn on M. bank in E. bank for collection, and E. bank forwarded check to F. W. bank, which refor-warded check to R. bank, which forwarded check to M. bank for collection, and M. bank drew draft in payment of cheek on E. W. bank in favor of R. bank, and M. bank became insolvent and agent in charge countermanded oz-der to 'pay draft, plaintiff held/ not entitled to judgment against F. W. bank for amount of check less dividends remitted and paid to him on account of collection.
    Certified Questions from Court' of Civil Appeals of Tenth Supreme Judicial District.
    Suit by J. S. Odie against S. C. Barnes, and others. Judgment for defendants was affirmed by the Court of Civil Appeals (288 S. W. 248), and on plaintiff’s motion for rehearing the Court of Civil Appeals certifies ■questions to the Commission of Appeals.
    Questions answered.
    P. S. Hale and H. J. Cureton, both of Meridian, for appellant.
    Geo. P. & Geo. D. Robertson and James M. Robertson, all of Meridian,' Locke, Locke, Stroud & Randolph, of Dallas,' and Paddock, Massingill & Belew, of Port Worth, for ap-pellees.
    
      
      Rehearing denied January 18, 1928.
    
   SPEER, J.

The certificate of the chief justice of the Court of Civil Appeals for the Tenth district, by which we acquire jurisdiction of this case, is as follows:

“Appellant, J. S. Odie, instituted this suit against appellees S. C. Barnes, Farmers’ Guaranty State Bank of Meridian, hereinafter called Mez-idian bank, the First National Bank of Fort Worth, herein called Fort Worth bank, and the Federal Reserve Bank of Dallas, herein called Reserve bank, to recover the sum of $345. The case was tried in the county court of Bosque county and judgment rendered for all the defendants. J. S. Odie perfected an appeal to this court, and upon hearing of said appeal the judgment of the county court was affirmed. The case is before us on appellant’s motion for rehearing. A brief statement of the pleadings and the findings of fact by this court are set out in the opinion of this court, a certified copy of which will' accompany this certificate and shall be considered as incorporated herein for all proper purposes.
“Appellant in his motion for rehearing concedes that the draft drawn by the Morgan bank upon the Fort Worth bank in favor of the Reserve bank for $1,850.77 in payment of checks presented to the Morgan bank for payment by said Reserve bank, among which was included the Barnes check upon which this suit is based, did not in itself constitute an assignment of any of the funds on deposit in said Fort Worth bank, but he contends that the drawing of said draft, under the facts of this case, constituted as between the Morgan bank, the bank examiner and the receiver of said bank on one hand, and appellant and the banks acting'as his agents in the collection of said Barnes check on the other hand, an equitable assignment of sufficient of the funds on deposit in the Fort Worth bank to the credit of the Morgan bank to discharge the same, or at least that the same constituted an equitable assignment of sufficient of said funds to pay the amount due him as proceeds of the collection of said Barnes check. He further contends that by virtue of such equitable assignment he became the owner of a sufficient amount. of the funds on deposit in the Fort Worth bank to the credit, of the Morgan bank to pay him the amount of said check, to wit, $345. He further contends that it became the duty of the Fort Worth bank to remit said amount to him as proceeds of the collection of his said check. His said contentions are more fully set out in his motion for rehearing, which is ordered transmitted herewith and made a part hereof. The transcript and statement of facts in this case are also transmitted herewith for such use as your Honorable Court may see fit to make of the same. Since it is not clear that appellant can secure a review of our action on his motion by application for writ of error, we deem it expedient to certify to your Honorable Court for determination the issues of law so presented, as follows:
“First Question: ‘Did the- act of the Morgan bank in drawing its draft on tbe Fort Worth bank in favor of the Reserve bank, constitute, under the facts of this case, an equitable assignment of sufficient of the funds to its credit in the hands of said Fort Worth bank to pay the same or to pay the amount due appellant as the proceeds of the collection of the Barnes check, which ■ proceeds were included in said draft?
“Second Question: ‘Was it the legal duty of the Fort Worth bank, under the facts in this case, to hold in its hands a sufficient amount of the funds on deposit with it to the credit of the Morgan bank to pay the amount due appellant as the proceeds of the collection of said check, and to remit the same to him as such?
“Third Question:- ‘Should appellant have had judgment against the Fort Worth bank in the trial court under his pleadings and the evidence adduced for the amount of said check, less such dividends as had been remitted and paid to him by appellees on account of such collection?’ ”

It. is conceded by all parties, as indeed it must be, that the drawing of its draft by the Morgan bank on the Fort Worth bank in favor of the Federal Reserve bank did not of itself constitute an assignment of any portion of the funds of the Morgan hank on deposit in the Fort Worth bank. The contention of appellant is that under the circumstances surrounding this transaction the drawing of such draft constituted an equitable assignment of such funds in the Fort Worth bank— at least to the extent of the balance due after deducting the payments received from the defunct bank.

There is nothing shown in the certificate that would take this case out of the ordinary transaction to constitute .the draft an equitable assignment of any portion of the Morgan bank deposit with the Fort Worth bank. Indeed, the opinion rendered by the Court of Civil Appeals, which is made a part of the certificate, contains this language:

“The evidence discloses with reasonable certainty that said draft was received by the Fort Worth bank after the order from the bank examiner stopping payment thereon. There is no evidence that the Fort Worth bank was advised at the time it received or returned said draft that the same represented in part the proceeds of the Barnes check.”

The first fact thus found by the Court of Civil Appeals discloses a situation that negatives any inference of actual payment by it of the Morgan bank draft, and likewise negatives any right, much less duty, to pay the draft, since at the time of its receipt the order for payment had been countermanded by the agent in charge of the Morgan bank. Payment by it after such payment had been stopped would have been a breach of duty by it, and the circumstances therefore did not .justify the holding that in equity there had been a payment. But the contention of appellant is not .technically a notional payment, but rather .that he should be protected upon the theory of equitable assignment. Whether or not there was an' assignment pro tanto of the funds would depend upon the .transaction between appellant and the Morgan bank in drawing its draft, and not upon anything the Fort Worth bank did or did not do. The assignment, if any was effected in law or equity, was the act of the Morgan hank. There is nothing in the record to show that there was anything out of the ordinary in the drawing of this draft against funds on deposit in the Fort Worth bank. There is nothing to indicate any intention whatever on the part of ,the Morgan bank that there should be such an assignment. It does not appear to have covered a specific deposit (as in Hatley v. West Texas Nat. Bank [Tex. Com. App.] 284 S. W. 540), or all of the general .deposit, nor is there any other circumstance to take it out of the ordinary .transaction, and to save the case from the statute (Rév. St. 1925, art. 5947, § 189) to ■the effect that a" check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank.

Appellant stresses the incongruity, as well as the hardship, of holding that Barnes’ check upon the Morgan bank given in payment of his vendor’s lien note held by appellant, was paid, and yet, that he, appellant, is held to have no dominant right in the proceeds of'such payment. But this consideration can have no influence upon our answer to the questions certified. Nothing is before us except the questions of law thus propounded, and we of course indicate no opinion upon the question of payment by Barnes or any other question .than the ones -here specifically answered.

Our conclusions are not influenced in any wise by a consideration of the opposing rules of agency for collection of checks and drafts, illustrated on the one hand by Tillman County Bank v. Behringer, 113 Tex. 415, 257 S. W. 206, 36 A. L. R. 1302, and on the other, hand by Douglas v. Federal Reserve Bank of Dallas, 271 U. S. 489, 46 S. Ct. 554, 70 L. Ed. 1051. Whether each succeeding collecting bank is to be treated as the agent of the payee or as the agent only of its immediate forwarder, the result would be the same in either instance in this case.

From what we have said it follows that each of the questions propounded should be answered in the negative, and we accordingly so recommend.

GREENWOOD and PIERSON, J.T.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals.

CURETON, C. J., not sitting. 
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