(252 S.W.) Fed. 883; 1 Morse on Banking, § 168; Bullard notice, it would be absurd to say that he could v. Randell, supra. do so effectually only if he should make his communication to the cashier actually within the walls of the banking house, and before it was closed to the public for the day. There would be no reason in such restrictions, and there is no law in their support. But if information be sought from the cashier, it should be sought at the banking rooms, where he can have access to the books, papers, and records." "In the instant case the cashier was not required to transact any business away from the bank, but, acting upon the information which he had received, to stop the payment of the check at the bank. Though there were some things that he could not do, as cashier, except at the bank and within banking hours, he was as much the cashier at home on Sunday as he was when he was in the bank, transacting its business on any other day of the week. The information which was received by him at his house on Sunday was given to him, not only because he was cashier, but as cashier, and was binding on him on Monday or any other day of the week. "Appellee, reasoning from analogy, says that as the cashier could not receive deposits, or pay or accept checks in behalf of the bank at any place other than in the banking house, for the reason that the vaults, safes and books are kept there, so, as the evidence shows that the bank is compelled to keep a stop-check register for the orderly conduct of its business, and that entries therein must be made at the bank where the same is kept, notice to the cashier to stop the payment of a check, given at a place other than at its place of business, is not binding on the bank. We concede that such would be the case, until the cashier, by the use of reasonable diligence, was able to communicate such information to those in charge of the bank's business during his absence, whose duty it would be, upon receiving such information, to make the proper entry in such register. "In the instant case, no reason is shown why the cashier, if he knew that he would not be at the bank when it was opened Monday morning, should not have communicated the information which he had received to the paying teller. "In support of its contention that notice to an agent of a corporation must be given at his place of business, appellee cites Ry. Co. v. Belcher, 88 Tex. 549. In that case, notice was given to a local agent at Gainesville as to facts which if known to the agent at Sherman would have rendered the railway company liable. It was no part of the duty, and not within the apparent scope of the duty of the local agent at Gainesville to instruct the local agent at Sherman with reference to shipments to be made from that point. Had the facts been communicated to the general manager of the road, the case would have been different; or had such notice been given to the local agent at Sherman, at a place other than at his office, the fact that he was not in his office when he received the information would not have excused him from using reasonable diligence to prevent the injury." [8] Nor do we think it can be said that it is unlawful for a bank cashier to receive information of this kind on Sunday. If so, he could not lawfully receive a telegram or spe| cial delivery letter. In the case at bar, the communication happened to be by telephone. We have not found any court decision holding it unlawful to receive information of this kind on Sunday. We do not think this would constitute working on Sunday within the purview of our statutes. In this case, the bank undertakes to escape liability, so far as this notice was concerned, because of an alleged infraction of its by-laws fixing its home office within certain hours as its place of business, and yet the record further shows that payment of this check would have been stopped had the bank, itself, observed its own by-laws and not opened for business before 9 o'clock on Monday morning. In the same suit it invokes one infraction to excuse itself and condemns another. There is an equitable phase to this case which appeals to us most strongly, and we think to hold this notice ineffectual would work grave injustice. When the cashier was called over the telephone, he made no objection to talking this much bank business on Sunday, or when away from the bank. On the contrary, he seems to have accepted the notice without any protest, promising to. make a written memorandum and attend to it next morning. It was natural, therefore, for Hewitt to conclude that he could rely upon this promise of the cashier and make no further efforts himself to save his money. Had the cashier objected to the notice for any reason and refused to accept it, the drawer of the check would, at least, have had an opportunity to go to the bank in person by the time it opened on Monday morning and serve the notice there. We do not say whether or not, as a matter of law, a cashier could refuse to receive this notice over the telephone at his home on Sunday. That question is not before us. But we do say [7] We do not think it can be seriously that the action of the cashier in the case at contended, in view of the authorities, that bar, in receiving the notice as he did, very notice to stop payment of a check, when serv-naturally lulled Hewitt into a sense of seed upon a bank cashier, is ineffectual simply curity and kept him from acting further in because not served in the banking house and his own behalf in person. during banking hours. On page 379, vol. 1, 5th Edition of Morse on Banks & Banking, we read: "So, if any person wishes to impart information so as to warn the bank or to affect it with Hewitt had given this check on Saturday night. He naturally feared it would be presented at the bank Monday morning, as it was, and before office hours at that. Confronted with that emergency, he called the cashier on Sunday to give him notice at once in order that the bank might know of his wishes immediately upon opening Monday morning. This cashier had in his hands "the general management of the affairs of the bank and full control of all its employees." He knew the custom of the bank to open at 8 o'clock in the morning. Hewitt had a right to expect him to diligently execute the promise he had given and to stop the payment of this check at the bank when it opened on Monday morning, either in person or by message to the proper employee. [9] Under the facts of this case, we are clearly of the view that this notice to the cashier was notice to the bank. Therefore we recommend that the certified question herein be answered in the affirma tive. CURETON, C. J. The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. SCOTT & MAYHALL v. LUBBOCK GRAIN & COAL CO. (No. 371-3382.) Court of. Civil Appeals, which certifies ques- MCCLENDON, P. J. This case arises upon certified questions from the Court of Civil Appeals. The controlling facts, as shown by the certificate are: "The appellee, Lubbock Grain & Coal Company, sued appellants, Scott & Mayhall, to recover as damages $712.75, alleged to have paid on a shipment of cane seed. This sum is alleged to be due by reason of the shortage in the weight of the seed at destination-Lubbock. That the appellant had guaranteed in writing the grades and weights at destination, which was alleged to be in Lubbock county. That the appellant drew on the appellees for the amount, with bill of lading attached. That the bill and draft were for certain weights specified but which in fact were short, alleging the number of pounds of the shortage at Lubbock. The suit was brought in the county court of Lubbock county. The appellants filed their pleas of privilege to be sued in the county of their residence, which was alleged to be in Deaf Smith county. The pleas are in proper form. These pleas were controverted by appellee, on the ground that appellants contracted in writing to guarantee the destination weights at Lubbock and that the contract was performable in Lubbock county. The appellants, Scott & (Commission of Appeals of Texas, Section B. Mayhall, at the time of making the contract, June 13, 1923.) 1. Sales199-When title passes question of intention to be gathered from circumstances. The questions when title passes to buyer is one of intention to be gathered from the facts and circumstances of the particular case. 2. Sales 202 (6)-Title not necessarily reserved till payment by form of shipment. That property sold is shipped C. O. D. or to shipper's order, with bill of lading attached to draft for purchase money, does not necessarily reserve title in seller till purchase money is paid. 3. Venue 7-Determined by destination in action on seller's guaranty of weight at destination. the shipment of the seed, and at the trial, were a partnership, doing business in Hereford, Deaf Smith county, Tex., and both resided in that county at the dates mentioned. The following is the contract in writing relied upon: "'February 19, 1918. ""Scott & Mayhall, Hereford, Texas. Gentlemen: We confirm purchase from you of about 80,000# of good, average country run red top cane seed, equal to sample submitted, and about 10,000# of Japanese seed, ribbon cane, at $10.25 per 100#, f. o. b. Hereford, Texas, sacked in good, secondhand sacks, destination weight guaranteed. Shipment as soon as possible within ten days. Unless otherwise instructed, bill to us at Lubbock, loading in two cars. Send draft with B/L attached to Lubbock State Bank. 66 'Respectfully, Within Rev. St. art. 1830, exception 5, "Lubbock Grain & Coal Company, giving venue in the county in which, by agree'By J. D. Quick. ment in writing, defendant was to perform the "Accepted: Scott & Mayhall, by J. A. Hayhaw.' contract sued on, venue of action on guaranty, "On February 26, 1918, appellant shipped the by seller of seed, of weight at destination, con- grain, drawing draft for $6,775.47 and attaching tained in written contract of sale, is in the thereto a bill of lading issued by the railway county to which seed was to be shipped, wheth-company, the carrier, over whose line the shiper or not by such contract title passed on delivery to carrier. Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District. Action by the Lubbock Grain & Coal Company against Scott & Mayhall. From judgment for plaintiff, defendants appealed to the ment was made, naming Scott & Mayhall consignors, and to the order of Scott & Mayhall, destination Lubbock, Tex., notify Lubbock Grain & Coal Company. Also attached to the draft and bill of lading was a bill of the seed, or an invoice, which reads: 'Sold to Lubbock Grain & Coal Company, Lubbock, Texas, Terms: Cash, sight draft, B/L attached,' giving the weight and price of the seed. The appellee paid the draft at Lubbock State Bank, March 2, 1918, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes SCOTT & MAYHALL v. LUBBOCK GRAIN & COAL CO. and the seed was then delivered to them and they paid the draft. The two questions certified follow: "(1) Did the trial court correctly refuse to change the venue of the suit to Deaf Smith county? "(2) Was the venue properly laid in Lubbock county?" The statute relied upon by appellant as laying the venue in Lubbock county provides that no resident of this state shall be sued out of the county of his domicile except: quote from "When the Erie City Iron Works sold the boiler to Robinson and Martin and delivered it to the railroad company at Houston, the title vested in the purchasers; neither payment of the price nor actual delivery to the purchaser was necessary to pass the title. Boaz & Co. v. Schneider & Davis, 69 Texas, 128; Cleveland v. Williams, 29 Texas, 204, 94 Am. Dec. 274; Irvin v. Edwards, 92 Texas, 258. The cases in our own reports are so numerous and definite to this proposition that we will not cite other authorities. "It is true that Robinson & Martin could not have taken possession of the boiler, without consent of the seller, until the price was paid, which right of possession by the iron works was asserted and protected by making "5. Where a person has contracted in writ- the delivery conditioned upon payment of the ing to perform an obligation in any particular price. The right of property passed to the county, in which case suit may be brought ei- purchaser when the particular boiler was desigther in such county, or where the defendant nated, but the right of possession remained R. S. art. 1830, excep-with the seller until the draft was paid. has his domicile." tion (5). "The right of plaintiffs in error to recover the damages is alone before this court." whether, at the time of the loss, the title had passed to the latter, who had already paid the draft and taken up the bill of lading. We do not think it necessary to discuss the facts of the case. [1, 2] The question of when title passes to the purchaser of chattels is, in its last analysis, one of intention to be gathered from The fact that the property is the facts and circumstances of each particular case. There are a number of cases by the several In the Orthwein Case the property had Courts of Civil Appeals which hold that where goods are ordered to be shipped by been lost in the Galveston storm before delivcarrier consigned to shipper's order at des-ery to the consignee and the question was tination, and paid for by draft with bill of lading attached, drawn on the buyer through a bank at destination, the transaction constitutes a contract in writing by the seller to deliver to the buyer at destination; and that suit for breach of such contract may be brought by the buyer against the seller in the county of destination. Seley v. Williams, 20 Tex. Civ. App. 405, 50 S. W. 399; Callender, Holder & Co. v. Short, 34 Tex. Civ. App. 364, 78 S. W. 366; Harris v. Salvato (Tex. Civ. App.) 175 S. W. 802; Kelsey v. Elevator Co., (Tex. Civ. App.) 206 S. W. 849; Harris v. Moller (Tex. Civ. App.) 207 S. W. 961; Gottlieb v. Dismukes (Tex. Civ. App.) 230 S. W. 792; Landa v. Ainsa (Tex. Civ. App.) 231 S. W. 175. To the same effect are Ice Co. v. Refining Co. (Tex. Civ. App.) 182 S. W. 1163 (writ of error refused) and Oil Co v. Refining Co., 55 Tex. Civ. App. 78, 118 S. W. 194. But these two cases have the additional element that the seller guaranteed the weights and grades at destination. shipped by carrier C. O. D. or to the ship- [3] We do not think it essential to the The Court of Civil Appeals in a majority question before us to determine whether the opinion followed these decisions. One of the title to the property passed upon delivery to judges, however, dissented upon the holding the carrier at the point of shipment or upon in Orthwein v. Elevator Co., 32 Tex. Civ. delivery to the consignee at destination. App. 600, 75 S. W. 364 (writ of error refused) The statute under consideration gives venue and Robinson v. Ry., 105 Tex. 185, 146 S. W. in the county in which the defendant has 537. The latter was a suit by purchasers of agreed in writing to perform the contract a boiler against the railway company for de- sued upon. A contract of sale may be made The boiler had been pur- and the title to the thing sold pass to the buylay in transit. chased by telephone and shipped from Hous- er; and yet the seller may be bound by covton to Gainesville consigned to shipper's or- enants or agreements connected with the der, notify consignee; the bill of lading be- sale which impose further obligations upon ing attached to a draft for the price drawn him. It may be urged, with no little force, on the buyers at Marietta, Okl. The ques- that the express guarantee of weights alone tion in the case was whether the buyers could at destination was an exclusion by implicasue for delay accruing prior to the time tion of any other obligaton upon the seller 166 subsequent to delivery to the carrier, and [ that this express provision of the contract evidenced an intention that the title was to pass to the buyer upon delivery to the carrier, subject only to the guarantee by the seller of destination weights. Without expressing an opinion upon this question, but assuming for the purposes of this case that title passed to the buyer upon delivery to the carrier, we think the contract is not susceptible of other construction than that the seller guaranteed that the weights shown upon delivery at destination should furnish the standard for his performance of the contract. Such contract could not be fully performed except at destination. could not relieve himself from liability unThe seller der his contract for a shortage in weight at destination by a showing that he delivered to the carrier the quantity (by weight) of cane seed for which the contract called; and this, regardless of the cause of such shortage. Independently of the question of ownership of the seed, there was unquestionably a contract in writing by which the seller guaranteed that he would deliver or that he would be responsible for the carrier's delivering at Lubbock the quantity of seed (by weight) specified in the contract. Our conclusion is that both certified questions should be answered in the affirmative. CURETON, C. J. The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. GANDARA v. STATE. (No. 7781.) (Court of Criminal Appeals of Texas. June 6, 1923.) Weapons 11(1)-Auto driver for hire commissioned as deputy sheriff not authorized to carry pistol when not in discharge of duty. Under Pen. Code 1911, art. 475, as to carrying a pistol on one's person, and article 476, as amended by Acts 35th Leg. (1918) c. 91, § 1 (Vernon's Ann. Pen. Code Supp. 1922, art. 476), excepting a peace officer in the actual discharge of his official duty, a driver of an automobile for hire was liable for carrying a pistol, although he had been commissioned as deputy sheriff, where he was not at the time engaged in the actual discharge of any duty as deputy sheriff, but was carrying the pistol simply as a protection to himself and his passengers. Appeal from County Court at Law, El Paso County; J. M. Deaver, Judge. (Tex. State. HAWKINS, J. A fine of $100 was assessed against appellant for unlawfully carrying a pistol. in an automobile which had just passed over He was arrested on May 25, 1922, while in company with another man and two women what is commonly known as "The Island." a bridge spanning the Rio Grande river from The evidence shows that the river at that the land known as The Island is in United point is not the international boundary between the United States and Mexico, but that States territory. Appellant at the time was armed with a Colt 45 automatic pistol which he was carrying in a holster. He was a service car driver and had been operating his car for hire, hauling passengers and baggage in the lower Rio Grande Valley. He testified that the section of the country in which he was operating had been the scene of a great many holdups and acts of violence, and on account of these conditions he felt that neither himself nor his passengers were safe without some kind of protection; that Paso county and obtained from him a comhe explained the situation to the sheriff of El mission as deputy sheriff; that he was into make arrests unless a warrant was placed structed by the sheriff that he had no right in his hands or unless an offense was committed in his presence. He qualified, taking the oath of office, and a commission was issued to him by the county clerk of El Paso county, which commission was introduced in evidence. The commission was effective at the time appellant was arrested. time he had held such commission appellant had made no arrests, had served no civil process, and was drawing no compensation discharge of any official duty at the time he as deputy sheriff, and was not engaged in the was found in possession of the pistol. He had made a trip with passengers and was on tified that he was not expecting to make any a return trip with other passengers. He tesarrests, but would have done so if the occasion had arisen. During the Article 475, Penal Code, provides that if any person shall carry on or about his perticle 476 provides that the preceding article son a pistol he is guilty of an offense. Arcertain circumstances. By the Acts of the 35th should not apply to certain persons under Legislature, 4th Called Session, c. 91, § 1, Acts 1918, art. 476, was so amended as to read: · "The preceding article shall not apply to a Manuel Gandara was convicted of unlawfully carrying a pistol, and appeals. firmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2 Tex.) GAMBOA v. STATE It is apparent from the record that appellant was not engaged in the actual discharge of any official duty as deputy sheriff, but was carrying the pistol simply as a protection to him and his passengers. However commendable his purpose may have been, the law as written must control. The burden was upon him to bring himself within one of the exceptions specified in said article 476. Jones V. State, 91 Tex. Cr. R. 240, 238 S. W. 661. Having failed to do so, he was guilty under the statute, and the judgment must be affirmed, and it is so ordered. GAMBOA v. STATE. (No. 7403.) 167 "Carmen Nunez, a single woman, who had theretofore never been married, a want of chastity to wit: The said Juana Fernandez de Gamboa, did then and there in the presence falsely, maliciously, and wantonly say, in the of Antonio García, and divers other persons, Spanish language, of and concerning the said Carmen Nunez: 'Carmen Nuñez, no es virgen 6 señorita; ella es de la calle y pertinece a la calle. Venga Ud á mi casa, y le provaré con cartas que ella es de la calle y no es virgen ó señorita,' which said Spanish translated into the English language is and means: 'Carmen Nunez is not a virgin, she is a street walker, and belongs to the street. Come to my house and I will prove by letters that she is a street walker and not a virgin.'". If we properly comprehend the evidence which was introduced by the state, it goes to show that Carmen Nunez was an unmar (Court of Criminal Appeals of Texas. May 30, ried woman; that the appellant, while in the 1923.) 1. Criminal law 97(1)-Prosecution for slander can only be based on statements made within territorial boundaries. Where defamatory statements have been made in another country, and also within this country, a prosecution for slander can only be based on the statements made in this country. 2. Libel and slander 155 - Evidence of de famatory statements admissible on issue of intent though such statements could not be basis of prosecution. Though defamatory statements made without the country cannot be the grounds for a prosecution for slander, evidence of such statements is admissible on the issue of intent in a prosecution for other subsequent statements. 3. Libel and slander 152(5)-Proof in prosecution for slander held at fatal variance with averments in Information. Where an information charged slander in that defendant accused an unmarried woman of want of chastity by the words "C. is not a virgin, she is a street walker and belongs to the street, etc." and the proof showed that the only words uttered in Texas were "C. is not a virgin," there was a fatal variance between the averment and the proof, though there was proof that the words charged had been spoken in Mexico. city of Juarez, republic of Mexico, had a The The testimony [1-3] In our judgment, there was a fatal variance between the averment and proof. The offense can rest alone upon the language used in El Paso. That used in Juarez was admissible upon the issue of intent, but not as a basis for the prosecution. The language used in Texas was that Carmen The meaning Appeal from El Paso County Court at Nunez was not a "senorita." Law; J. M. Deaver, Judge. of this, it seems, is debatable. The Spanish Juana Fernandez de Gamboa was convict- words set out in the indictment differ ma ed of slander, and she appeals. and remanded. Reversed terially from those proved to have been uttered in El Paso. Their English translation is different. As translated, the words mean: "Carmen Nunez is not a virgin, she is a street walker, and belongs to the street. Come R. G. Storey, Asst. Atty. Gen., for the to my house and I will prove by letters that she is a street walker and not a virgin." Owen & Bridgers, of El Paso, for appellant. State. MORROW, P. J. The offense is slander; punishment fixed at a fine of $100. The information charged that appellant imputed a want of chastity to a female by the use of these words: The words used in Texas, as translated, mean "Carmen Nunez is not a virgin." See Humbard v. State, 21 Texas App. 200, 17 S. W. 126; Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340; Hasley v. State, 57 For other cases see same topic and KEY-NUMBER in all key-Numbered Digests and Indexes |