I concur in the disposition made of this appeal, because I think the court erred in refusing to submit to the jury the issue as to E. B. Johnson's negligence in surrendering the escrow notes without further inquiry; but I do not assent to the holding that Sugg has not himself been guilty of such negligence as would estop him from recovering upon the note. I also agree with all Judge WILLIAMS has said in regard to the estoppel of Sugg.
The jury found, in response to the fourth special issue, that in delivering the $50,000 note and the deed of trust securing the same, together with the release of the deed of trust, to Ben Johnson, Sugg did not exercise such reasonable care and caution as an ordinarily prudent person would exercise under like or similar circumstances. This finding is tantamount to a finding that Sugg was guilty of negligence in sending the instruments to Ben F. Johnson, and the evidence is amply sufficient to sustain the finding. This being true, Sugg would not be entitled to recover upon this phase of the case unless E. B. Johnson was guilty of such negligence as would deprive him of the right to plead the negligence of Sugg as an estoppel. The courts of Texas have long recognized and enforced the maxim that, "He who trusts most must suffer most," and I am of the opinion that the act of Sugg in negligently sending these papers to Ben Johnson, or to the bank of which he was the managing officer, thereby making it possible for him to defraud and impose upon the public, has brought him within the rule. Kesler v. Zimmerschitte, 1 Tex. 50; Roman v. Serna, 40 Tex. 306; Stevens Andrews v. Gainesville National Bank, 62 Tex. 449; Marx v. Elsworth, 2 Posey, Unrep.As. 83; Neale v. Sears, 31 Tex. 105; Jones v. Prim, 6 Tex. 170; 21 C.J., pp. 1169-1176; Home Savings Bank v. Stewart, 78 Neb. 624, 110 N.W. 947; National Safe Deposit Savings Trust Co. v. Hibbs, 229 U.S. 396, 33 S. Ct. 818,57 L. Ed. 1241.