Harper v. Winfield State Bank , 173 S.W. 627 ( 1915 )

The appellant contends that the court was in error in overruling his plea of privilege to be sued in the place of his residence. It is thought that the provision of the statute authorizing suits to be brought against plural defendants in the county where any one of them resides is applicable to this suit. According to the face of the draft sued upon, the bank was the payee. And the object of drawing the draft in favor of the bank instead of Miller Tabb was, it appears, for the purpose of having the bank credit Miller Tabb with the proceeds of the paper in extinguishment of their account then due and owing the bank. The bank, it fairly appears, received the instrument, together with an assignment of the bill of lading, and credited the amount of the draft on the books of the bank to Miller Tabb upon their account owing the bank. The effect of the transaction, by intention of the parties, was to make the bank the owner of the draft with its attendant security of the bill of lading for the cotton. And Harper, being the drawer of the draft, undertook, in legal effect, to pay the sum mentioned to the owner of the draft, if the draft was not accepted and paid by the drawee, and upon notice of the dishonoring of same being duly given him.

Upon protest of the draft, and due notice to Harper, and after further indulgence in time requested by Harper was given him by the bank, Miller Tabb put their names on the back of the draft at the request of the bank. As it plainly appears that the bank was the payee in the face of the draft, and the actual owner of it by the intention of the parties at the time of its delivery in the first instance, the subsequent placing of their names on the back by Miller Tabb could not be properly held to have transferred any title or interest of Miller Tabb to the bank; but rather the placing of their names on the back was to add strength and credit to it. Upon the record we cannot say that the placing of their names on the draft was not a part of the original transaction between the bank and Miller Tabb. Placing their names on the draft at the request of the bank would raise the presumption, in the absence of evidence to the contrary, that their guaranty, which is the effect, was a part of the original transaction.

The effect of the guaranty by Miller Tabb was to pay the draft if the maker failed to do so. Therefore, if the drawer of the draft was liable to the bank on his obligation, the guarantors were liable also, and were proper parties to the suit. A suit may be brought against plural defendants in the county where any one of them resides. Subdivision 4, art. 1830, Vernon's Sayles' Stat. Construing this subdivision, it has been held that the defendant, who resides in the county where the suit is brought, must be either a necessary or proper party defendant; and, if he is not, then a plea of privilege by a defendant of another county joined with him in the action should be sustained. Railway Co. v. Mangum, 68 Tex. 342, 40 S.W. 617; Mathonican v. Scott, 87 Tex. 396, 28 S.W. 1065; Cobb v. Barber, 92 Tex. 309,47 S.W. 963. The provision of the statute extends to one who is liable as a guarantor of the claim. Turner v. Brooks, 2 Tex. Civ. App. 451,21 S.W. 404; Cleveland v. Campbell, 38 S.W. 219. The proviso added to the former act by the Acts of 1913 has no application to the case as presented by the record. The bank in this case being the payee in the face of the draft, and the legal owner, did not become a "subsequent holder" of the draft by the indorsement of Miller Tabb, as comprehended by the proviso mentioned.

It is concluded that, in view of the facts, the other assignments should be overruled. The drawer of the draft was liable if the drawee failed to pay the same, and upon due notice to him, all of which is shown. And having a lien on the cotton, as the bank did, a sale of the cotton for the account of the drawer was authorized. The proceedings respecting the sale may properly be claimed to have been irregular, but it reached no further than a mere irregularity of proceeding. The agreement respecting the fact and mode of sale cannot be construed as having the legal effect of releasing appellant from his liability. The cotton was sold, it appears, at the market price, and the proceeds actually and fully credited on the debt of appellant, so that no injury resulted in the least to appellant.

The judgment is affirmed.