On Motion for Rehearing.
[7] Appellant bank urges that the evidence in the statement of facts fails to sustain the finding of the jury to special issues 2, 3, 4, and 5. That since appellee offered E. C. Ed-monds, president of defendant bank, as a witness, it vouched for his credibility, and cannot question his testimony except to show that he was honestly mistaken. He cites in support of this proposition such cases as G., C. & S. F. Ry. Co. v. Johnson, 28 Tex. Civ. App. 395, 67 S. W. 182; Casey-Swasey Co. v. Virginia State Insurance Co., 33 Tex. Civ. App. 85, 75 S. W. 911; Paxton v. Boyce, 1 Tex. 317, 325. In the last-cited case, the Supreme Court, speaking through Justice Lipscomb, said:
“It is a rule of evidence, that when one party makes a witness of the other, .he does it under the responsibility and condition that he thereby places him, on the score of credibility, beyond impeachment. He may prove the witness mistaken, by proving the party [fact?] to be otherwise, but we will not be allowed to impeach his credibility.”
Though a party cannot ordinarily discredit his own witness, he may prove facts inconsistent with the witness’ testimony, even though he discredits the witness by doing so, and this rule applies in both civil and criminal cases. G., C. & S. F. Ry. Co. v. Mitchell, 21 Tex. Civ. App. 463, 51 S. W. 662. In 28 R. C. L. p. 643, § 227, it is said:
“It is well settled that although a party may not impeach his own witness directly, he may show that the statements made by him are not in fact true, and thus incidentally discredit him. This is true not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief. This is one of the exceptions to the general rule that a party cannot impeach his own witness. Indeed were a party forbidden to contradict his owh witnesses, every one would be at the mercy of his own witnesses, and if the first witness sworn should swear against him he would lose the testimony of all the rest, which would be a perversion of justice.” .
In 28 R. O. L. p. 646, § 230, it is further said:
“The generally accepted rule is that although a party .who calls the adverse party as a witness cannot directly attack the''witness for the mere purpose of impeachment, he is not concluded by his testimony and is at liberty to. *190prove the facts to be otherwise than the witness has represented them. There are, however, manifestly stronger reasons for permitting the contradiction and impeachment of a party who is called as a witness than of an ordinary witness, and it has frequently been held that prior material admissions and declarations of the witness, being declarations against interest, are competent independent evidence, although they contradict his testimony. There is, however, also authority to the contrary on this point.”
Article 815 (formerly 795) of the Texas Criminal Procedure provides:
“The rule that a party, introducing a witness, shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to his cause, may attack his testimony in other manner, except by proving the bad character of the witness.”
While this rule of evidence is contained in the Criminal Procedure, we believe it states the rule as held by our courts in civil cases as well. See Jones Blue Book of Evidence, § 854, p. 242; Barnard v. State, 45 Tex. Cr. R. 67, 73 S. W. 957; Abbott on Civil Jury Trials (4th Ed.) pp. 300 to 310.
[8] Bearing in mind the rules hereinbefore discussed, we will now note some of the testimony tending to sustain the issues found by the jury. Edmonds testified that he was president of the defendant bank, and at the time of the transactions involved in this suit was cashier thereof, in the active discharge of its business. The evidence further shows that Eite had been doing business with the defendant bank for some time, and that prior to the time the $6,500 draft was drawn other drafts were drawn by Fite on plaintiff, and that plaintiff paid the same, and simultaneous shipments of cattle were made by Eite to cover the amount of the drafts. Edmonds testified:
“I understood, when he became indebted to the bank, that his means of obtaining money to pay the indebtedness was out of the proceeds of the sale of the cattle that he might ship out, and pay for them that way. I understood that these drafts which he drew on the Rhome-Earmer Commission Company were supposed to be upon shipments that he was then contemplating making.”
He further testified:
“When Perry Eite drew that draft (referring to the first draft drawn by Perry Eite on ap-pellee), I had some conversation with him about his drawing it. It is my memory that he told me he was coming on down to Eort Worth, and would be in Eort Worth before the shipment got here'; that is my memory of the first transaction. Naturally I supposed at any time when he drew a draft he was going to ship out. He said to me at that time that he believed that Rhome-Earmer would pay his draft; and in connection with that statement, he stated to me that he was going to see the Rhome-Earmer Commission Company and make arrangements whereby they would pay the draft or something to that effect. The making of that arrangement was coupled with the making of a shipment. It is my understanding that all the subsequent drafts were made under the same character of arrangement; I would think that he had contemplated making shipment after drawing any of these drafts, even the last one.”
At the time the draft was drawn, Fite owed the bank an overdraft of $2,194.19, on outstanding acceptances which the bank had paid, $3,529.47, and two notes aggregating $4,500, with accumulated interest, both notes past due. Edmonds sent for Fite, and demanded of him that his indebtedness to the bank be reduced. He testified:
“I was bent on getting the money for the bank, and that was my object. I will say that was my object.”
At the same time, Edmonds took a chattel mortgage on every foot of livestock held by Fite, or that might come into his possession. It was provided in that mortgage that the livestock covered by it should not be taken out of the county without the consent of the bank, and if shipped the proceeds were to be paid to the bank. Upon this matter, Ed-monds testified:
“As to whether the bank permitted Perry Eite to ship them (Fite’s cattle) out without having an agreement with him that the proceeds derived from the sale of such mortgage property should be remitted to the bank, I will say that the only agreement we had with him was embodied in the mortgage, and we supposed that he would comply with the provisions of the mortgage. * * * I don’t remember whether he asked permission to ship out any of the stock or not. I would say that he did not, because he might have known we would not release our mortgaged property to enable him to do that. * * * I have already testified that the terms of the mortgage in fact covered all of the sto^ck that he had on hand at that time.”
Furthermore, when the representatives of plaintiff went to Spur, later, and asked Mr. Edmonds what had pecóme of the money received from the $6,500 draft, Edmonds replied that it had been placed to Fite’s credit, and he was still overdrawn.
In the interest of reasonable brevity, we will state that we have carefully gone over the statement of facts, and believe the evidence is sufficient to sustain the answers of the jury to issues Nos. 2, 3, 4, and 5.
The motion for rehearing is overruled.