Friends in Need Society v. Peterson

On Motion of Appellee. In his motion for rehearing appellee very earnestly insists that all said transactions were merely parts of the efforts to collect the check drawn by the appellant on the Belton bank, that said check was never in fact paid, and that therefore the appellant's obligation to appellee was never discharged, citing particularly the case of Waggoner Bank Trust Co. v. Gamer Co., 113 Tex. 5, 213 S.W. 927. We read this case carefully before writing our opinion. We do not think it is applicable to this case. In that case the check was never paid. The drawee bank issued no draft or other instrument of its own in lieu of the check. The controlling question there, and the one decided by the Supreme Court, was whether or not the original bank with whom the check was deposited for collection, and its correspondent bank through which it was sent, were guilty of negligence in their failure to collect the check.

In the instant case we think it was a clear case of negligence on the part of the San Angelo bank to send the check deposited with it direct to the payee bank for collection, when other channels for collection at Belton were available to it. Numerous cases could be cited to sustain this proposition. However, in response to special issues submitted, the jury found that the appellee both authorized and ratified the conduct of the San Angelo bank in the premises, and there is no appeal from that finding. Hence that question is not before us for decision.

It is well settled, as stated in the Waggoner Bank Trust Company Case, supra, that the mere delivery to the creditor of a check drawn by the debtor does not in itself discharge the debt in the absence of an express agreement to that effect. In the instant case, however, we have another obligation executed by the bank itself in lieu of the check, to which the debtor was not a party, and with which appellant had nothing to do, which new obligation was accepted even though subject to subsequent payment, by the San Angelo bank and by the appellee. Under these circumstances and cases cited, we think that the appellant's obligation to appellee was discharged The motion is therefore overruled.