On Motion for Rehearing.
The contention that the telegram, treated as a check, when accepted by the Fort Worth bank, operated as against the State Bank of Sipe Springs as an assignment, pro tanto, of the funds on deposit, and hence in equity entitled the Desdemona bank thereto, was sufficiently answered, we think, in our' original opinion. It is now urged, however, that the same effect must be given to the fact that as a consideration for the telegram Smith gave the State Bank a certified cheek on the Desdemona bank. It is true the State Bank accepted the certified check and sent the telegram. Buf; it is undisputed that this certified check was never paid, and, hence,' under all of the authorities, the State Bank had the right to reverse its credit entries and repossess itself-of the fund before its actual receipt by the Desdemona bank. Indeed, the evidence strongly suggests that Smith (the Desdemona bank) at the very time he drew the certified cheek and induced its acceptance by the State Bank knew he was insolvent and without the ready cash to pay his check, for it was not paid, and 15 days thereafter his insolvency was formally declared by thecommissioner of insurance and banking, a receivership theretofore having been granted, presumably by a state court and,possibly on the ground of Smith’s insolvency. We cannot lend assent to the contention that the Desdemona Bank, under any view of the facts, became so clothed with right to the $15,000 fund in controversy as to authorize the appel-lee bank, without the knowledge or consent of the state bank or of its controlling officers, to appropriate said fund to its own use and *250to that of the Desdemona bank. Other contentions presented in appellee’s motion may, we think, be passed without discussion other than that given in our original opinion, and appellee’s motion for rehearing will accordingly be overruled.
Appellants', however, also present a motion in which they urge that we set aside our order reversing and remanding the cause, and now here render judgment for the appellant stockholders, and we have concluded that we may properly do so.
It is made to appear that since our original opinion and judgment the commissioner of insurance and banking and appellants T. R. Bacon and associates have, upon a proper order of the district court, as provided by article 458, Complete Texas Statutes 1920, adjusted their differences in such a way as that appellant T. R. Bacon and associates are now the sole owners of the claim against the appellee bank.
It is apparent from our original opinion that the principal ground for remanding the cause for a new trial was that, as we viewed the case, the issue of ownership of the fund in controversy existing between the commissioner of insurance and the plaintiffs in the suit had not been determined, we, incidentally, leaving open the issue of limitation as between the commissioner of insurance and the apjpellee bank. It follows, we think, if we were correct in our original opinion in de-' termining the right or want of right in the appellee bank, and we are of the opinion that we were, that, under the circumstances now presented, no material issue of fact remains for determination, unless it be the issue of limitation against the commissioner of insurance, urged by the appellee bank, which, of course, is not bound by the settlement agreement between the commissioner and the other appellants, to which agreement the ap-pellee bank is not shown to have been a party.
We have accordingly considered more carefully than on original hearing the evidence relevant to said issue of limitation, and think there can be no pretense that the appellant stockholders w,ere barred of their action, and we have finally concluded that the evidence relating to the issue as against the commissioner of insurance is not of such probative force as would support a finding and judgment in favor of the appellee bank. We will not set out this evidence in detail, believing that it is sufficient to say, as already appears, in part, at least, in our original opinion, that the date of appellee’s misapplication of the funds in controversy was on September 27, 1919; that appellee’s reports to the State Bank of Sipe Springs were such as to create the belief that the fund had been transferred to the Kansas- City bank as directed by the telegram, the State Bank being charged with the $15,000 and 70 cents additional, presumably as the cost of sending the telegram. In this condition of the State Bank’s information, it dissolved its organization and sold to the State Guaranty Bank of Sipe Springs on January 20, 1920, its assets, as. detailed in our original opinion. Among'the assets so transferred to the State Guaranty Bank there was no bank entry or claim of the State Bank of Sipe Springs to the $15,000 in controversy, and nothing in its then records delivered to the State Guaranty Bank of Sipe Springs gave any indication or information that the fund intended to be transferred to Kansas City, as directed in the telegram, yet of right remained on deposit in the appellee bank for the benefit of the state bank. There is nothing in the evidence of probative force to show that the Guaranty State Bank of Sipe Springs, after its receipt of the assets and records of the State Bank, had any knowledge or information relating to the fact that the appellee bank retained or had disposed of any moneys which of right belonged to the State Bank or to its stockholders. The Guaranty State Bank continued its business until closed by the Commissioner of Insurance in May, 1921, when, for the first time, the commissioner appears to jiave been clothed with the duty of investigating the condition of the assets of the State Guaranty Bank, including those acquired from the State Bank. The commissioner filed his plea of intervention on the 27th day of April, 1922, less than two years after he took possession and control of the Guaranty State Bank and of its assets. As it seems to us, the conduct of the appellee bank, under all the circumstances, in legal effect amounted to a fraudulent concealment of the material fact which it was its duty to communicate, and which, under authorities too well known to require citations, would toll the statute.
We accordingly conclude that our former order remanding the cause should be set aside and judgment now here rendered in favor of appellant T. R. Bacon and his associates for the $15,000 which they sought to recover, together with interest thereon from September 27,1919, at the rate of 6 per cent, per annum, and all costs of the trial court and of this court, and that the appellant the commissioner of insurance and banking take nothing by reason of his intervention.