On Motion for Rehearing. We conclude upon rehearing that the judgment of the trial court must be affirmed. The case now presented is quite different from that presented in the former appeal, in that the evidence in the record now before us is full as to all phases of the case, while in the former record the evidence was quite too meager and unsatisfactory to support the judgment, which was reversed upon that account. The case is one largely of fact, and was disposed of in the court below upon issues raised by conflicting evidence.
Appellant's case rests upon the contention that appellee the Lyford bank undertook to collect a draft upon a bank in Arkansas, and negligently failed to perform that undertaking, or to account for a cashier's check given *Page 579 by the Arkansas bank in settlement of the draft. The record shows that the Lyford bank forwarded the draft for collection through its regular correspondent, the City National Bank of San Antonio, which in turn forwarded it direct to the bank in Arkansas upon which it was drawn. The latter issued its cashier's check in payment of the draft, and forwarded it to the San Antonio bank, which thereupon returned it to the issuing bank for payment. It was never paid for the reason that the issuing bank failed before its cashier's check was presented for payment. The original draft was annexed to a deed in which the drawer conveyed one-half the land involved to one Stockton, cashier of the Arkansas bank. That bank took up the draft by issuing its cashier's check therefor, detached the deed therefrom, and returned it to the forwarding bank with directions to have it recorded in Willacy county, where the land is situated. In the meantime the San Antonio or correspondent bank forwarded the cashier's check to the Arkansas bank with the result stated.
It is the settled law of this state that, "when a bank receives negotiable paper to be collected at a distant point, and transmits the same with due diligence and care to a reputable and proper correspondent at or near the place where the collection is to be made, it has discharged its duty, and is not responsible for the negligence of such correspondent, but that such correspondent becomes the agent of the owner of the paper." 6 Tex.Jur. § 148, p. 297; Tillman County Bank v. Behringer, 113 Tex. 415, 257 S.W. 206, 36 A.L.R. 1302, and case note.
Under this rule the Lyford bank was not liable in this case for any negligence of the San Antonio bank, conceded by appellant to be a reputable and proper correspondent.
Appellant contends that he gave the Lyford bank special instructions concerning the collection, which, if followed by the bank, would have prevented the loss, and that the Lyford bank ignored those instructions and did not communicate them to its correspondent. It is obvious that if such instructions were given the forwarding bank and it failed to transmit them to its correspondent, it would be liable to appellant for any loss resulting from such failure. But in this case the giving of such instructions was sharply denied by witnesses for appellees, thereby raising a clear issue of fact, and the trial court having resolved the issue against appellant, it goes out of the case, since the finding thereon is binding upon this court.
Appellant vigorously contends that because the San Antonio bank forwarded the draft direct to the drawee bank, instead of another bank in the same town, the forwarding bank is liable for the consequences of such act. It is true that, in the absence of a stipulation to the contrary, a collecting bank is held to be negligent in sending paper direct to the drawee bank when other channels of collection in that locality are available to it. 6 Tex.Jur. § 147, p. 296; Friends, etc., Soc. v. Peterson (Tex.Civ.App.) 9 S.W.2d 1110.
But the liability in such case rests upon the bank actually guilty of such negligence, and where, as in this case, it is the act of an intermediate or correspondent bank, the liability will be restricted to that bank, and will not be imputed to the forwarding bank in the absence of specific facts which make it a party to the negligence. In other words, under the general rule, the correspondent bank is not deemed an agent of the forwarding bank, but is the agent of the drawer, to whom it is directly liable; unless, indeed, facts peculiar to a given case create an exception to the general rule, which is not the case here. Upon the foregoing conclusions we overrule appellant's propositions 4 and 5.
Appellant devotes much space in his brief to the contention that appellee bank is liable because it has always refused appellant's frequent demands for the dishonored cashier's check in controversy. These contentions are without merit, since appellees' witnesses testified that no such demand for said check had ever been made upon the bank, and the court resolved, against appellant, the issue thus raised; and the judgment recites that the check was tendered to appellant upon the trial, while it is undisputed that the check has never been paid. Appellant challenges this recitation, asserting that there is no evidence of such tender. We conclude, however, that the recitation is conclusive, that the tender was made in open court, as was reflected by the judgment. We overrule appellant's propositions 3 and 6. Appellant's first proposition, complaining of the exclusion of certain evidence, is overruled for the reason that the said ruling, even if erroneous, could not possibly have injured appellant.
Appellant contends in his propositions 2 and 7 that he had not forfeited, but had performed, his contract with appellee Clark to purchase the land involved from the latter. The record conclusively shows, however, that regardless of the merits of the controversy between him and the bank, appellant did not pay Clark the $3,000 cash required of him in said contract, or tender it until long after the option therefor had expired, and for this reason, if no other, the contract was forfeited under its express terms. We overrule appellant's propositions 2 and 7.
The case is really one of fact, the issues of which have been resolved by the trial court against appellant, upon conflicting *Page 580 testimony. This court is bound by the trial court's findings in such cases.
In his motion for rehearing appellant raises a number of questions not presented in his brief. He is limited in this appeal, however, to the propositions and assignments set up in his brief, and the additional questions presented in his motion for rehearing, even if meritorious, could not be considered.
Appellees' motion for rehearing is granted, the judgment of reversal and rendition heretofore rendered by this court will be set aside, and the judgment of the trial court affirmed.