On Motion for Rehearing.
In the motion of appellee for rehearing the following paragraph occurs:
“The holding of the trial court that upon the facts of the case the bank was liable is not adverted to in the opinion. We take it, therefore, that this court sees no error in that action of the trial court. This being true, under the provision of rule G2a, hereinbefore quoted, that ‘if it appears to the court that the error affects a part only of the matter in controversy and the issues are severable, the judgment shall only be reversed and a new trial ordered as to that part affected by such error,’ we ask the court, in the event it does not grant this motion, to affirm the judgment of the trial court as to all other matters other than its ruling upon the question of misjoinder of causes of action and as to the admissibility in evidence of appellant’s petition.”
After careful consideration, we were not satisfied that the evidence was sufficient to establish the liability of appellant.
J. B. Winniford nad P. P. Bond, cashier of appellant, testified that the bank neither owned the wheat at the time of these transactions, nor did it have a lien upon or interest therein; and, further, that the activity of Bond in coming to Dallas and in assisting in the sale of the wheat to appellee was at the request of Winniford and as a personal favor to him, and that he was not representing the bank in these matters.
The only evidence that conflicts with this testimony is that of H. G. Isbell and Joe Lawther, to the effect that Bond, the cashier of appellant, told them that the -wheat was being sold for the- bank; .that it had' advanced money on the wheat to Winniford on drafts drawn by him on the milling company, which had been refused; and that the bank was left with the bag to hold, etc.,
If the facts are as testified to by Winniford and Bond, the bank could not be held liable by reason of any respresentation or agreement that Bond may have made in regard to the wheat.
On this issue we were, and are, of the opinion the case has not been fully developed, because doubtless there exist records and book entries made contemporaneously with these transactions that should shed light thereon of a very convincing nature. In view of another • trial, we refrain from a discussion of the evidence.
The motion for rehearing is overruled.