City of San Antonio v. Grandjean , 91 Tex. 430 ( 1898 )

The defendant in error in her motion for a rehearing complains of inaccuracies in the statement of the case made in the opinion of this court, which we deem it proper to correct. The statement complained of is as follows: "On the 17th day of December, 1889, Ulysses Grandjean accepted one-half of the sum and gave his receipt therefor. On January 4, 1890, the plaintiff drew her check for the other half and had it placed to her own credit in the bank and subsequently during the same year drew it out and in various sums and appropriated it to her own use." The statement of the Court of Civil Appeals, from which the above was extracted, is as follows: "Early in the morning of December 3, 1889, the Street Commissioner of the city of San Antonio, acting for and in behalf of the city, tore down and removed the buildings, and the premises were appropriated by the city to its use as a part of St. Mary's street, and have been used by the city exclusively for that purpose continually ever since. The City Treasurer, upon the instruction of the City Attorney, placed the money ($35,000) in the bank to the credit of both parties. This deposit seems to have been made on December 31, 1889, although the following receipt was given for the money, viz: 'San Antonio, Dec. 17, 1889. Received of Ferdinand Herff, City Treasurer of the City of San Antonio, the sum of thirty-five thousand dollars, being the amount deposited to my credit by the said City of San Antonio for the damages allowed me for the condemnation of my property, situated on the northeast corner of Commerce St. and St. Mary's St., and taken for the purpose of widening said St. Mary's Street; said amount being in full of all my claim therefor. (Signed) Ulysses Grandjean.' Appellant was not present when the receipt was given, nor when the deposit was made. The treasurer of the city was not induced to do anything, nor was he in any way misled by what appellant at any time said or did. On January 4, 1890, after the receipt was executed, and the money deposited in bank, the appellant went to the bank, and complained to Mr. Herff, the city treasurer, stating that her husband would squander the money, and she wanted to get her half of it. Upon being informed by Herff that she could draw it if she wanted it, she thereupon drew her check on the bank for $17,500, which was honored by the bank, and the sum of money for which the check was drawn was, by the bank, placed to her individual credit. She afterwards, by a number of checks, drew all this money out; the last check upon it being dated August 1, 1891. The balance of the money was drawn from the bank by appellant's husband."

The case was tried without a jury and the court gave judgment for the defendant without stating the conclusions of law and fact upon which the judgment was based. Under a well-established rule the trial judge must be deemed to have found every fact necessary to support the judgment which there was evidence to establish. The Court of Civil Appeals reversed the judgment and rendered judgment for the appellant — basing their conclusion on the broad proposition, that without a legal condemnation, or a legal conveyance joined in by the husband and duly acknowledged by the wife, the title of the appellant was not divested. If they had reversed the judgment upon any matter of fact upon which the evidence was conflicting the cause should have been remanded for a new trial.

The documentary evidence shows, that the money was drawn from the city treasury to pay Ulysses Grandjean and Marie O. Grandjean; that on the 3rd of December, 1889, it was deposited in bank payable to the order of "Marie Grandjean and Ulysses Grandjean." This is shown by the certificate, issued on that day by the assistant teller of the bank, of a deposit made by the City Treasurer. This certificate was endorsed "credit account of Marie Grandjean or Ulysses Grandjean." But it appears from the books of the bank, that the credit was not entered on the books of the bank until December 31, 1889. This indicates, we think, that the funds were held by the bank as a special deposit, until the parties for whose benefit it was made had agreed to accept the money. The receipt of Ulysses Grandjean of December 17, in connection with other evidence, shows that it was not for money then paid, and there was no evidence of any change of credit on the books of the bank on that date. On December 31, 1889, the deposit was entered to the credit of Ulysses or Marie O. Grandjean," and on the 4th of January next thereafter one-half was drawn out by the husband, and on the same day the wife drew a check for the other half and the same was placed to her credit on the books of the bank. She subsequently drew out the amount at different times; and whether this was within one year or two years after the deposit was made to be her separate credit, is wholly immaterial.

Having made the desired correction with the foregoing additional statement, we have only to add that the difference between the facts as found by the Court of Civil Appeals and the facts as stated by this court should, in our opinion, make no difference in the result of the case. The motion for a rehearing is overruled.

Motion overruled.

Opinion delivered February 7, 1898.

DENMAN, Associate Justice, did not sit.