
    HEWITT v. FIRST NAT. BANK OF SAN ANGELO.
    (No. 392-3599.)
    (Commission of Appeals of Texas, Section B.
    June 6, 1923.)
    1. Banks and banking <&wkey;l 19 — Deposit creates relation *of debtor and creditor.
    When money is deposited in a bank, the relation of debtor and creditor is created.
    2. Assignments <&wkey;49 — Check is not assignment until accepted and paid.
    A check drawn on a bank is not an assignment of any part of the fund against which it is drawn until it is presented and accepted as paid.
    3. Banks and banking <&wkey;l39 — Bank which pays check after notice to contrary is liable.
    Where a- bank, after being notified by a depositor of stoppage of payment, pays a check, it is liable.
    4. Banks and banking 102 — Cashier is usually chief executive officer.
    The cashier of a bank is usually its chief executive officer, and in the scope of his official duty he is the bank.
    5. Banks and banking <&wkey;116(3) — Knowledge of cashier that drawer of check desired it not to be paid is knowledge of bank.
    A bank cashier’s knowledge that the drawer of a check desired that it be not paid was the knowledge of the bank.
    6. Banks and banking &wkey;>l 16(3) — - Notice to cashier, at other than bank’s place of business, of stoppage of payment of check, imputable to bank.
    Where a depositor notified the cashier of a bank, when the cashier was not at the bank, of depositor’s desire to stop payment on a cheek, and the cashier agreed to attend to the matter, such notice is imputable to the bank, and where payment was made the bank is liable.
    7. Banks and banking &wkey;>l 16(3) — Notice to cashier of bank, after banking hours, to stop payment of check, is notice to the bank.
    Where the cashier of a bank was notified by depositor that depositor desired to stop payment on a check and the cashier agreed to attend to the matter, such notice was notice to the bank, though the notice was given after banking hours, for it related to banking business.
    8. Sunday <&wkey;9 — Notice of steppage of payment of check valid where given, on Sunday.
    Notwithstanding it is unlawful, under Rev. St. 1911, art. 4606, and Pen. Code 1911, art. 299, to labor on Sunday, the day being a legal holiday, notice by a depositor on, Sunday to the cashier of a bank of stoppage of payment on a cheek is valid; the cashier being requested to act on the following day.
    9. Banks and banking <§=»I39 — Bank liable for cashier’s failure to act in time on notice to stop payment of check presented before banking hours.
    Where a depositor notified the cashier of the bank by telephone on Sunday not to pay a cheek, and the cashier promised to attend to it, whereby the depositor took no further steps to protect his money, hut the check was paid before the cashier arrived at the bank on Monday, the bank was liable for the money so paid, notwithstanding it was a custom of the bank to open before the usual banking hours, since the cashier, knowing of such custom, should have been at the bank when its doors were unlocked.
    Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.
    Action by T. E. Hewitt against the First National Bank of San Angelo. Judgment for defendant was reversed toy the Court of Civil Appeals, a rehearing granted, and question certified to the Supreme Court.
    Question answered.
    Anderson & Upton, of San Angelo, for appellant.
    1-Iill & Hill, of San Angelo, for appellee.
   POWELL, J.

This cause is before the Supreme Court upon the following certificate from the Honorable Court of Civil Appeals of the Third District:

“This suit was brought by appellant to recover from the appellee the sum of $700, paid by appellee upon a check given by appellant, the payment of which appellant had attempted to stop by notifying the cashier of appellee, by ’phone at his residence, on Sunday, not to pay the same.
“The case was tried in the court below without a jury, and judgment was rendered for the defendant, appellee herein. Upon appeal to this court, we reversed the judgment of the trial court, and rendered judgment for appellant. A certified copy of our opinion herem accompanies this certificate, to which reference is here made. This cause is now pending in this court upon motion for rehearing.
“The undisputed facts are:
“(1) The appellee is a national bank, and its place of business is fixed by its by-laws at 102 South Chadbourne street, San Angelo, Tex., where it has its banking house.
“(2) Its hours of business, as fixed by its bylaws, are from 9 a. m. to 3 p. m., but it has been its custom for many years, as is the custom of all other banks in San Angelo, to unlock its doors at 8 á. m., and, while the doors are not open, deposits will be received and checks paid from and after that hour, when customers enter the bank and so demand.
“(3) Appellant was a customer of the bank. He lived in an adjoining county, and is not shown to have had actual knowledge of this custom of the bank.
“(4) Appellant had on deposit with appellee, on Saturday, May 19, 1917, an amount in excess of $700. On that night he drew a check in favor of Luke Robinson for $700, and delivered same to Robinson.
“(5) At this time O. H. Powell was, and for a long time prior thereto had been, the cashier of appellee, having the general management of the affairs of the bank and full control over . all of its employees.
“(6) At this time N. S. Rives was, and for a long time theretofore had been, the paying teller in said bank, which fact was known to appellant.
“(7) On Sunday following the giving of the check referred to, appellant called Powell over the ’phone at his residence in San Angelo, which was about a half mile from the bank, and told him not to pay the check referred to. Powell replied that he would make a written memorandum of the matter, and attend to it when he returned to the bank.
“ (8) On Monday morning Powell was detained at his home by sickness in the family, and did not arrive at the bank until 8:40 a. m. Upon arriving at the bank, he instructed Rives not to pay the check - ref erred to, and then learned from Rives that Robinson presented the check a few minutes before, and that the same had been paid.
“By reason of the novelty and importance of the issue of law here involved, the Supreme Court not having jurisdiction to grant a writ of error by reason of the amount involved, and being requested by appellee to certify such issue, we here submit to your honorable court the following question:
“Under the facts of this case, was the notice given by appellant to the cashier of appellee notice to appellee?
“In this connection, we beg to call your honor’s attention to the fact that we did not assert, as contended by appellee in its motion for a rehearing, the general proposition that notice to the cashier of a bank not to pay a check, given when the cashier was not at the bank, was notice to the bank, but only that such notice under the facts of this case was notice to the bank.”

It will be seen that the opinion of the Court of Civil Appeals herein, as well as the certificate, confines the rules of law discussed to the facts of this particular case. No effort is made to reach a conclusion applicable in any general sense. Therefore the answer we shall recommend will be confined to similar limits.

We have carefully considered the extensive briefs filed by each of the parties hereto and made considerable independent investigation. We have reached the conclusion that the Court of Civil Appeals, in an able opinion by Justice Jenkins, has, itself correctly answered the question now under consideration. We think the latter opinion concisely, clearly, and correctly answers the various contentions urged by counsel for the bank. We have read the authorities cited by Judge Jenkins and are of the view that they sustain his conclusions in every instance. We feel that we cannot present these matters to the Supreme Court in any more helpful way than to quote as follows from the opin-. ion of the Court of Civil Appeals:

“When money is deposited in a bank, the relation of debtor and creditor is thereby created. Bank v. Shannon, 159 S. W. 398.
“A check drawn on a bank is not an assignment of any part of the fund against which it is drawn, until it is presented and accepted as paid. Bank v. Shannon, supra; Bullard v. Randall, 1 Gray, 605 ; 61 Am. Dec. 433; House v. Kountze, 43 S. W. 561.
“If the bank, in the instant case, paid the check after it was notified not to do so, it is liable to appellant. The only issue is: Was notice to the cashier, under the circumstances stated in the findings of fact herein, notice to the bank?
“The cashier of a bank is usually its chief executive officer, and within the scope of his official duty he is the bank. Bank v. Douglas, 161 S. W. 607; Bank v. Bank, 149 S. W. 495.
“We do not think that there is any merit in appellee’s contention that the notice to Powell was ineffectual, because the same was given on Sunday. It is true that Sunday is a legal holiday, and, with certain exceptions, it is unlawful to labor on that day. R. S. art. 4606; Penal Code, art. 299. But Powell was not asked to perform any labor on Sunday. Certain information was imparted to him, upon which he was requested to act the next day.
“Nor do we think the legal principle, that information obtained by an agent in the prosecution of his private business-is not imputable to his principal, has any application to the facts of this case. Stopping the payment was not the cashier’s private business, but the business of the bank, and notice to Him was notice to the bank. Bank v. Ledbetter, 34 S. W. 1043; 1 Morse on Banking, pp. 369, 370.
“Even if we regard the cashier as only an agent, and not the alter ego of the bank, still, as such agent, it was his duty to act upon the information he had received; and his knowledge that the drawer of the check desired that it be not paid was the knowledge of the bank. Bank v. Ford, 152 S. W. 700; Bank v. Douglas, 161 S. W. 602.
“It is the contention of appellee that the notice given to Powell was not binding on him, for the reason that he was not at the bank when the same was given. ‘For some purposes, the cashier is clothed with official character only at the banking house and in banking hours; for other purposes he remains clothed with it at all times and at all places.’ 1 Morse on Banking, p. 378, § 168. Notice as warning may be given elsewhere. Id., p. 379.
“There are some transactions which a bank can properly attend to only at its place of business. Thus a bank has vaults and safes, in which to safely keep its money, and books, in which it is necessary to. enter its transactions with its customers, in order that it may know the state of their accounts. These being kept in the bank, an officer has no right to receive deposits at a place other than in the banking house, and should he do so, he will be held to be the agent of the party delivering the funds to him, and not of the bank. The same is true as to a check presented to a cashier at a place other than in the bank. He has no authority to accept it. He may have known that the customer had funds in the bank when he left it, but they may have been drawn out within five minutes thereafter. It is for these obvious reasons that the law requires national banks to have a place of business, and that they are not authorized to transact their business elsewhefe. U. S. R. S. §§ 5136 and 5190; Autry v. Bank, 38 Fed. 883; 1 Morse on Banking, § 168; Bullard v. Bandell, supra.
“In the instant case the cashier was not required to transact any business away from the bank, but, acting upon the information which he had received, to stop the payment of the check at the bank. Though there were some things that he could not do, as cashier, except at the bank and within banking hours, he was as much the cashier at home on Sunday as he was when he was in the bank, transacting its business on any other'day of the week. The information which was received by him at his house on Sunday was given to him, not only because he was cashier, but as cashier, and was binding on" him on Monday or any other day of the week.
“Appellee, reasoning from analogy, says that as the cashier could not receive deposits, or pay or accept checks in behalf of the bank at any place other than in the banking house, for the reason that the vaults, safes and books are kept there, so, as the evidence shows that the bank is compelled to keep a stop-check register for the orderly conduct of its business, and that entries therein must be made at the bank where the same is kept, notice to the cashier to stop the payment of a check, given at a place other than at its place of business, is not binding on the bank. 'We concede that such would be the case, until the cashier, by the use of reasonable diligence, was able to communicate such information to those in charge of the bank’s business during his absence, whose duty it would be, upon receiving such information, to make the proper entry in such register.
“In the instant case, no reason is shown why the cashier, if he knew that he would not be at the b'ank when it was opened Monday morning, should not have communicated the information which he had received to the paying teller.
“In support of its'contention that notice to an agent of a corporation must be given at his place of business, appellee cites Ry. Co. v. Belcher, 88 Tex. 549. In that case, notice was given to a local agent at Gainesville as to facts which if known to the agent at Sherman would have rendered the railway company liable. It was no part of the duty, and not within the apparent scope of the duty of the local agent at Gainesville to instruct the local agent at Sherman with reference to shipments to be made from that point. Had the facts been communicated to the general manager of the road, the case would have been different; or had such notice been given to the local agent at Sherman, at a place other than at his office, the fact that he was not in his office when he received the information would not have excused him from using reasonable diligence to prevent the injury.”

We do not think it can be seriously contended, in’ view of the authorities, that notice to stop payment of a check, when served upon a bank cashier, is ineffectual simply because not served in the banking house and during banking hours. On page 379, vol. 1, 5th Edition of Morse on Banks & Banking, we read;

“So, if any person wishes to impart information so as to warn the bank or to affect it with notice, it would be absurd to sav that he could do so effectually only if he should make his communication to the cashier actually within the walls of the banking house, and before it was closed to the public for the day. There would be no reason in such restrictions, and there is no law in their support. But if information be sought from the ca|hier, it should be sought at the banking rooms, where he can have access to the books, papers, and records.”

Nor do we think it can be said that it is unlawful for a bank cashier to receive information of this kind on Sunday. If so, he could not lawfully receive a telegram or special delivery letter. In the case at bar, the communication happened to be by telephone. We have not found any court decision holding it unlawful to receive information of this kind on Sunday. We do not think this would constitute working on Sunday within the purview of our statutes.

In this case, the bank undertakes to escape liability, so far as this notice was concerned, because of an alleged infraction of its by-laws fixing its home office within certain hours as its place of business, and yet the record further shows that payment of this check would have been stopped had the bank, itself, observed its own by-laws and not opened for business before 9 o’clock on Monday morning. In the same suit it invokes one infraction to excuse itself and condemns another.

There is an equitable phase to this ease which appeals to us most strongly, and we think to hold this notice ineffectual would work grave injustice. When the cashier was called over the telephone, he made no objection to talking this much bank business on Sunday, or when away from the bank. On the contrary, he seems to have accepted the notice without any protest, promising to make a written memorandum and attend to it next morning. It was natural, therefore, for Hewitt to conclude that he could rely upon this promise of the cashier and make no further effbrts himself to save his money. Had the cashier objected to the notice for any reason, and refused to accept it, the drawer of the check would, at least, have had an opportunity to go to the bank in person by the time it opened on Monday morning and serve the notice there. We do not say whether or not, as a matter of law, a cashier could refuse to receive this notice over the telephone at his home on Sunday. That question is not before us. But we do say that the action of the cashier in the case at bar, in receiving the notice as he did, vers naturally lulled Hewitt into a sense of .security and kept him from acting further in his own behalf in person.

Hewitt had given this check on Saturday night. He naturally feared it would be presented at the bank Monday morning, as it was, and before office hours at that. Confronted with that emergency, he called the cashier on Sunday to give him notice at once in order that the bank might know of his wishes immediately upon opening Monday morning. This cashier had in his hands “the general management of the affairs of the bank and full control of all its employees.” He knew the custom of the bank to open at 8 o’clock in the tnorning. Hewitt had a right to expect him to diligently execute the promise he had given and to stop the payment of this check at the bank when it opened on Monday morning, either in person or by message to the proper employee.

Under the facts of this case, we are clearly of the view that this notice to the cashier was notice to the bank.

Therefore we recommend that the certified question herein be answered in the affirmative.

CURETON, C. J.

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