I concur in the conclusion of the majority that the judgment of the trial court should be affirmed as to the first draft, and that the statute has been correctly construed on the issue that Tyler Bank Trust Company was the 'drawee bank.' I am unable to agree with the construction of the Statutes, Articles 342-703 and 342-704, V.A.T.C.S., or the majority's version of the evidence relative to the remaining drafts, and note my dissent.
Before I discuss the construction of the statutes, I pause to state that in my opinion the evidence is sufficient on the first draft to support the implied finding of the trial court that the Bank had notice that the cattle involved had been received. The quoted testimony of the witness Stringer will not support the holding of the majority that the Tyler Bank had instructions from appellee to hold all the drafts except the first two. It will be noted that Stringer said: '* * * I think we did report to them within a 24-hour period or less * * *' and in his testimony where he positively stated: 'Yes, there was on each and every one of them,' it was in response to a question as to whether or not a request came from the Fort Worth Bank or T. B. Saunders Commission Company. Therefore, the testimony is not conclsuive as to whom he reported but construing that testimony with other testimony, it is clear that he was talking to a representative of the Fort Worth Bank.
As stated by Mr. Chief Justice Hickman in the case of Lone Star Gas Co. v. Sheaner, Tex.Sup., 305 S.W.2d 150-154: 'Courts will construe the language of a statute liberally to attain its true objective, but not to destroy or reduce its effectiveness.' It is admitted that the Fort Worth Bank was the agent of appellee as a matter of law. The question is: Did the agent, by virtue of Sec. 5, Art. 342-703, have the authority, as a matter of law, without the express consent of appellee, to notify the Tyler Bank to hold the drafts in question beyond the 24-hour period and thereby relieve the Tyler Bank of liability on the drafts after they had been deposited with the agent bank as a cash item? I do not so construe the statute. As a matter of fact, the agent could give reasonable instructions 'not in conflict with law' and the instruction contended by the Tyler Bank to have been given by the Fort Worth Bank is definitely in conflict with Sec. 3 of Article 342-704, which makes the Tyler Bank liable for failure to return the drafts within 24 hours.
It is true that Sec. 5 of Article 342-703 also provides that the agent and sub-agent banks may be held liable for damages proximately caused by its own negligence, wrongful act, or breach of contract in connection with the collection of an item. But, an agent or sub-agent bank could not be guilty of any such acts if such authority has been expressly given by statute. If the construction placed upon the statute by the majority is correct, the Article not only becomes a nullity, but provides an unlimited avenue of escape by banks in such instances. If such construction is correct, the Fort Worth Bank could even at this state of this litigation, exercise the option provided by Sec. 3 of Article 342-704 and waive liability of the Tyler Bank and the *Page 98 appellee would be without any remedy whatever to recover his funds from either bank.
I would affirm the judgment of the trial court in toto.