Appellant, in 1925, undertook to purchase from appellee Clark a tract of land situated in Willacy county, Tex., for $3,000 in cash, and the assumption of a certain debt against the land. The papers in connection with the transaction were deposited in the First State Bank of Lyford, Tex. Jones, during January, 1926, attempted to close the deal, and sought to make the cash payment of $3,000 by draft drawn against his account with the People's Bank in Ozark, Ark. Jones delivered said draft, with deed attached, to the Lyford bank, which accepted it for collection. The Lyford bank forwarded the draft to the City National Bank of San Antonio, Tex., which, in turn, sent same direct to the People's Bank of Ozark, Ark., and that bank upon its receipt of the draft issued its own cashier's check therefor and sent it to the City National Bank of San Antonio, which in turn sent it to the Lyford bank.
Appellees answered with a general denial, general demurrer, and many special exceptions, etc., and specially answered that appellant drew this draft for $3,000 and attached a deed to one-half interest to F. G. Stockton, the cashier of the Ozark bank. That as the draft had a paper attached the Federal Reserve Bank would not handle it. That on the 16th of January, 1926, Stockton, for the Ozark bank, issued a cashier's check for the draft in the sum of $3,000. The San Antonio bank had instructed the Ozark bank to send the proceeds to Dallas, but the Ozark bank violated the instructions and sent it to the San Antonio bank, which bank returned the check to the Ozark bank, through the Federal Reserve Bank, but when it got to Little Rock, Ark., the Ozark bank had failed on account of insolvency; and further pleaded fraud, etc. The answers of the defendants were practically the same.
The case was tried without a jury and the court rendered judgment for appellees.
This case presents its second appeal, having been before this court in 13 S.W.2d 954, when it was reversed and remanded.
We do not think there is any merit in appellant's first proposition, complaining of the action of the court in refusing to allow Jones to testify that he had money in the bank to pay his draft. When one draws and delivers a check on a bank for money, in the absence of proof that he had no fund subject to his check, the legal presumption, or inference, is that he had such fund, since the bank accepted the draft and issued and delivered its certified check for the face of the check.
There was no evidence introduced apparent in the record that the cashier's check has been tendered in this case, except the judgment of the trial court found "that defendant bank tendered into court the cashier's check in question, and that there has never been any demand for the said check."
The chief negligence we can see in this case was the negligence on the part of the Ozark bank in sending its certified check in payment of the draft for $3,000 in the manner stated, and who was responsible for that? Was the San Antonio bank guilty of want of ordinary care and prudence in sending a draft payable to the payee when there was another bank in the same city? If the draft had been sent to the other bank, it would no doubt have been collected, but through the want of care on the part of the San Antonio bank an opportunity was given the Ozark bank to do the very thing it did do.
We do not here discuss the facts of this case, since they are practically the same as stated in our former opinion, to which reference is made.
While the apparent negligence committed was by the City National Bank in sending for collection the check to the payee therein, we cannot enter judgment herein against it because it is not a party to this suit. We can charge its negligence against appellee as it was its agent We know of no decision or rule of law that would justify the manner in which this collection was handled.
As this case has been tried before, we believe it has been developed all it can be, and therefore reverse the judgment and here render judgment in favor of the appellant for the sum of $3,000, the amount of the draft, and $200 forfeit money provided in the contract, with lawful interest from date of the institution of suit; that is to say, for $3,200 from February 5, 1926.
Reversed and rendered.