I concur in the result reached, though not in all that is said in the opinion written by Mr. Justice SPEER. *Page 641
The provisions of the "unless" clause of the lease constituted a limitation on the grant, but the parties to the lease could lawfully change the medium of payment of the delay rentals, and waive strict performance thereof, without violating the Statute of Frauds. Gulf Production Company v. Continental Oil Company, 139 Tex. 183,164 S.W.2d 488. Both under the general rules relating to acceptance of a check as payment, and under the stipulations of the parties, the acceptance of the check in this case did not constitute an absolute payment of the rentals, but only a conditional payment. The condition created by the express agreement of the parties was that the check should constitute payment of the rentals if paid by the drawee bank. In such a case, however, the law would imply certain undertakings on the part of the parties to the transaction. One undertaking so implied would be that the lessor would, in accordance with usual commercial practices and the law pertaining to negotiable instruments, present the check for payment or cause it to be presented, and that he would do so within a reasonable time. On the lessee's part there would be implied an undertaking to see that money was kept on deposit in the drawee bank in an amount sufficient to pay the check, or at least that an arrangement would be made with the drawee bank that would result in payment of the check on presentation whether the funds in the drawer's account were sufficient for the purpose or not. Mays undertook to make an arrangement with the bank to cover an overdraft, but the arrangement proved to be ineffective. Under the stipulated facts Mays was the lessee's agent in the handling of the rental payment, and it seems clear that the lessee must answer for all that was done by Mays.
The trial court found that the lessor was negligent in not presenting the check for payment more promptly. It does not follow, however, that the lessor's negligence was the direct cause of the check not being paid. The direct cause of the nonpayment was Mays' own act in withdrawing his funds and using them for other purposes. His duty to keep sufficient funds on deposit to pay the check was at least as great as was the duty of the lessor to present the check promptly. We could not reasonably say that, as between Mays and the lessor, Mays was only under a duty to keep his check good for a few days, and that after a few days he could take the position that the lessor had lost his right to have the check paid. When Mays withdraw his funds and used them for other purposes, he suffered no loss when the check he had given the lessor was not paid by the drawee bank, even though, looking backward, he may now wish that he had used his funds to pay the rental check instead of for other purposes.
The controlling factor in the question of causation is simply this: Mays withdrew funds which he should have left on deposit to cover the rental check, and he did not make an effective arrangement with the bank to meet an overdraft. His own conduct was the direct cause of nonpayment of the check. His principal, the lessee, having trusted Mays to handle the matter, must suffer the consequences.