(dissenting).
When the majority of the court reached their conclusion as to the proper disposition of this appeal, I entered my dissent, and as directed by the statute now make and file this statement of the grounds upon which the dissent is based.
The material facts are fully set out in the opinion of the majority.
It seems clear to me that under the plain unambiguous contract -made by the parties at the time appellant gave appellee credit for the draft it undertook to collect for him, it cannot be held liable for the failure of its correspondent bank, Union Trust Company.
This contract is fully set out in the findings of fact by the trial judge, which is copied in the majority opinion, and need not be here repeated.
Just how the clear unambiguous language of this contract can be ignored, because of the fact that if the draft had been indorsed to the Union Trust Company “for collection and return,” it would have been the duty of the trust company to have forwarded the amount to appellant on the day it was received by the trust company, is beyond my comprehension. As shown by the contract between the parties, the draft was indorsed to the trust company “for collection and credit.” • As I understand the argument of the majority opinion, it is in effect that if the draft had been forwarded under an indorsement different from that required by the contract, the proceeds of the draft could have been forwarded to appellant before the close of business on the day it was received by the trust company and appellee would not have sustained the loss caused by the failure of the trust company, which occurred on the second day after the draft was collected. The fallacy of this contention is 'so apparent that argument is not necessary to demonstrate its unsoundness.
If there had been no contract between the parties at the time the draft was received by appellant and credited to appellee’s-account, under the well-settled rule of decision in this state, the trust company became the agent of appellee and appellant could not have been held liable for .the default of its correspondent bank, unless it was guilty of negligence in selecting such correspondent. Tillman County Bank v. Behringer, 113 Tex. 415, 420 and 421, 257 S.W. 206, 36 A.L.R. 1302; Humble Oil & Refining Co. v. Wichita State Bank & Trust Co. (Tex.Civ.App.) 11 S.W.(2d) 644; Falls City Woolen Mills v. Louisville Nat. Banking Co., 145 Ky. 64, 140 S.W. 66.
The authorities seem to be uniform in the holding that the statement of the terms upon which a deposit is secured printed upon the passbook of the depositor, or upon the deposit slip at the time the deposit is made, becomes a part of the contract between the parties. It is thus shown by the undisputed record in this case that by agreement of the parties the appellant acted only as appellee’s collecting agent and assumed no liability beyond the exercise of due care. Heid Bros. v. Commercial Nat. Bank (Tex.Com.App.) 240 S.W. 908, 24 A.L.R. 904; O’Hara v. Texas Nat. Bank (Tex.Civ.App.) 299 S.W. 649; Humble Oil & Refining Co. v. Wichita State Bank & Trust Co., supra; Jefferson County B. & L. Ass’n v. Southern Bank & Trust Co., 225 Ala. 25, 142 So. 66. The question of such negligence on the part of appellant is not raised by the pleadings or the evidence.
In my 'opinion, the provisions of the contract between the parties, before set out, the legality of which is not and cannot be questioned, not only forbids the affirmance of this judgment, but requires that this court reverse the judgment of the trial court and render judgment in favor of appellant, that the appellee take nothing by his suit, and that the appellant recover its costs.