On Rehearing.
Appellant insists that there was error on the part of this court in concluding that the evidence established the facts that Mr. Trabue had and carried the “passbook of appellee at the bank,” and that he was the “active president” of the bank at the time of the alleged cotton dealing in suit. The insistence is entirely correct. The evidence does not warrant the finding in reference to the “passbook.” And, going more carefully to the record, we now believe that it does not warrant the finding that Mr. Trabue was the “active president” of the bank at the time. Mr. Ash testified: “I am president of the Guaranty State Bank; I became connected with the bank in that capacity the first part of last year” — which was 1912. If consideration be given to the statement of Mr. Ash, as must be, then both he and Mr. Trabue were presidents of the bank at the same time. There being two presidents of the bank at the time, then the further testimony of Mr. Biggs, the cashier, which is the only evidence bearing upon the capacity of Mr. Trabue, must be observed in respect to Trabue’s authority. Mr. Biggs testifies, according to the record, that Mr. Trabue “was honorary president of the bank, but not active in the bank. He had a store over there, and stayed in the store. * * * Mr. Trabue never stayed in the bank; he didn’t draw any salary, and performed no services in the bank. Trabue was Running his store. He was president of the bank.” And to meet this evidence there appears only the statement in the general language of appellee that Mr. Trabue “was president of the bank.”
If Mr. Trabue as honorary president did not have the authority to bind the bank, and appellee knew the fact of his want of authority, and, so knowing, nevertheless dealt with him on account of the bank, he could not hold the bank. But whether appel-lee knew of any want of authority on the part of Mr. Trabue does not satisfactorily or sufficiently appear from the evidence, and we do not undertake, in view of the course this rehearing must take, to make any ruling or finding now in respect thereto. It is a vital question in the case, provided it be found, as a fact, that appellee was undertaking to deal with Trabue as an officer of the bank having authority to make the collection and give the credit in suit. It is not a question in the case, though, if the dealing about the cotton in suit was as a fact purely a personal and private transaction between appellee and Mr. Trabue.
After a thorough reconsideration of all the facts of the record, we are constrained to conclude that there was error in affirming the judgment, and that the judgment should be reversed, and the cause remanded for another trial. As the reversal occurs on the facts of the record, we do not deem it proper to undertake to comment upon or discuss them. The want of authority, as disclosed by the facts in the record, on the part of Mr. Trabue to bind the bank is the prominent ground for the reversal.
In reference to the insistence of appellant that there was no sufficient plea of payment by appellee, it is remarked that the answer might probably be amended at another trial, and it would serve no good purpose now to make further ruling in respect thereto.