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of the cotton represented by said bills of lading, and whereby said bank undertook, promised and agreed and became bound unto the plaintiff to carry out and fulfill the defendants Newell W. White & Company's said contract with plaintiff above set out.

630 “64. The said bank having by the means aforesaid become the owner and holder and proper payee of said drafts and bills of lading and cotton aforesaid, forwarded the said drafts along with said bills of lading to its agents and correspondents for collection from the plaintiff, which said drafts and bills of lading accompanying the same reached plaintiff and were accepted and paid by plaintiff long prior to the time when said cotton which had been shipped by freight did or could have reached its destination, by reason of which plaintiff was forced to and did rely solely on defendant to deliver to it the amount of cotton represented by said draft with freight and brokerage added, at the purchase price herein shown and for which the plaintiff had paid them as aforesaid. And plaintiff believing that said drafts less said freight charges and brokerage represented the true amount of the purchase prices of said cotton calculated upon the true and correct weight thereof, paid said drafts, freight charges and brokerage before it could have examined or weighed said cotton, all of which the defendant well knew the plaintiff would be forced to do when they shipped said cotton and drew and discounted said drafts, and which was also shown to the said bank when it purchased said drafts and bills of lading, and it undertook to carry out said contract as aforesaid.

“'5. That the defendants Newell W. White and A. Hicks, contriving and fraudulently intending to deceive and defraud plaintiff in this behalf, did not deliver to it the amount of cotton in weight represented by the amount of said drafts, freight charges and brokerage, at said purchase prices, and which plaintiff had paid them for, but falsely made out said drafts for an amount grossly in excess of the amount they were entitled to receive froin plaintiff calculated upon the true weight of said cotton, for the purpose of defrauding plaintiff as aforesaid, for all of which the defendant bank, by reason of its having purchased said drafts and bills of lading and become the owner of said cotton and undertaken to carry out said contract is liable to plaintiff, while in truth and in fact the true weight of said cotton so shipped was only as follows, to wit: (Here follows statement of weights.]

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“ "That had the said cotton been of a weight sufficient at said purchase prices to have made the amount of said drafts including all freight and brokerage the saine would have been as follows, to wit: [Here follows statement of weights showing the shortage.]

'Which said difference in weight between the cotton actually delivered and the amount for which the plaintiff had paid said defendants as aforesaid at said purchase prices amounting to the sum of three thousand seven hundred and twenty-seven dollars and thirty-four cents, as is more particularly shown by the itemized statement which is hereto attached marked exhibit “A” for identification and made a part of this petition, which sum is three thousand seven hundred and twenty-seven dollars and thirty cents, the said Citizens' National Bank of Tyler by the manner and means herein alleged has collected, had and received from plaintiff over and abore the amount it was justly entitled to receive, and which it now still wrongfully withholds from the plaintiff, 631 and which amount the defendants, although often requested, have failed and refused and still fail and refuse to pay, to plaintiff's great damage,

“66. And plaintiff further alleges that if it be mistaken in its allegations that said Newell W. White and A. Hicks were partners and that said contract of sale was made and said drafts drawn on said cotton shipped and said drafts and bills of lading were transferred, sold and indorsed by them to defendant bank as partners, plaintiff alleges that all of said things were done and performed by one or both of them as individuals, and that the said Newell W. White was in and about said transaction doing business under the said name of Newell W. White & Company, and plaintiff alleges that it is unable here to state whether or not in said transaction the said Newell W. White and A. Hicks were partners or whether said acts and things herein alleged to have been done by them were done as individuals or done by them jointly or severally, for the reason that the knowledge of the true nature and manner of said transaction is unknown to plaintiff and cannot be ascertained hy it and is peculiarly within the knowledge of the said defendants, Newell W. White and A. Hicks.

“Wherefore the premises considered plaintiff sues and praysthat, defendants having been duly cited, that upon final hearing it have judgment against all of the aforesaid defendants for the amount of its said damages, for costs of suit, and for all

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such other and further orders, judgments and decrees as it may be entitled to under the law and the facts, both generally and specially, both in law and equity, and in duty bound will ever pray.'

"We respectfully propound for your decision the question: Did the trial court err in sustaining the general demurrer?”

The action appears to be founded on the idea that by the transactions alleged the bank became a party to the contract of sale between plaintiff and White & Company, bound to perform the undertakings of the latter, and therefore liable for the violation of their agreement. It is not averred that the bank was a party to or had notice of the fraud charged against White & Company, or was guilty of any negligence or misrepresentation, or in any way deceived plaintiff, and hence the action cannot he maintained as for deceit, fraud or negligence on part of the bank.

The theory of the plaintiff is supported by the decision of the court of civil appeals for the third district in the case of Landa v. Lattin, 19 Tex. Civ. App. 246, 46 S. W. 48, which was followed by the supreme court of North Carolina in the case of Finch v. Gregg, 126 N. C. 176, 35 S. E. 251. We understand the courts to hold in those cases that a purchaser of such drafts and bills of lading is substituted, by the mere purchase, in the place of the vendor in the contract of sale, becomes bound to perform that contract as a condition precedent to his right to the price of the goods represented by the bill of Jading; and that, therefore, although the drafts be actually accepted and paid by the drawee, if the consideration which he was to receive from the drawee fails, the price may be recovered from the holder to whom the payment has been made. It is 632 undoubtedly true that the purchaser acquires by his purchase no greater rights than the drawer has against the drawee. The attitude of the latter is, so far, unchanged, and he is no further bound to the purchaser than he would be bound to the drawer to accept or pay; but we do not agree that the purchaser becomes bound to perform the contract of the vendor, nor that, when the bill of exchange is subsequently accepted or paid, he acquires no additional right against the acceptor or payor. Transactions of this kind have often come before the courts and we understand the rule of the commercial law to be thoroughly established, that one who has accepted or paid a bill of exchange drawn upon him, cannot defeat his acceptance or recover the money paid because there was no consideration, or the consideration has failed, as between him and the drawer, when

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the payee bought from the latter, for value, without notice of the defense. The leading cases on the subject have arisen where bills of lading for goods were forged and attached to drafts drawn for the prices of the goods, negotiated with banks, and forwarded to and accepted or paid by the drawees, without knowledge on the part of either holder or drawee of the forgery. Efforts of the acceptors to avoid liability on acceptances and of payors to recover the money so paid have been defeated, both in courts of law and of equity: Hoffman & Co. v. Bank of Milwaukee, 12 Wall. 181; Goetz v. Bank of Kansas City, 119 U. S. 551, 7 Sup. Ct. Rep. 318; Robinson v. Reynolds, 2 Ad. & E. 196; Thiedemann v. Goldschmidt, 1 De Gex, F. & J. 4; 1 Daniel on Negotiable Instruments, secs. 174, 175, and notes ; Marsh v. Low, 55 Ind. 271. Other authorities are cited in those referred to.

In Thiedemann v. Goldschmidt, 1 De Gex, F. & J. 4, Lord Campbell said: "I think that dangerous consequences would follow, and the credit of bills of exchange be very much shaken, if the title of the indorsees of bills of exchange, as against the acceptor, under such circumstances, could be called in question. It is allowed that the case of Robinson v. Reynolds, 2 Ad. & E. 196, was well decided, that its authority has never been ques. tioned, and that it is a part of the commercial law of England.” After further discussing the cases, he says: “It must be considered that the bills were accepted by Thiedemann (the drawee) on the credit of Homeyer (the drawer and forger), and for that reason it would be alarming if the title of the indorsees (they holding the bills bona fide for value) could be thus impeached.”

In the case of Hoffman & Co. v. Bank of Milwaukee, 12 Wall. 181, the supreme court of the United States thus states the doctrine: "Money paid under a mistake of facts, it is said, may be recovered back as having been paid without consideration, but the decisive answer to that suggestion as applied to the case before the court, is that money paid, as in this case, by the acceptor of a bill of exchange to the payee of the same, or to a subsequent indorsee, in discharge of his legal obligation as such, is not a payment by mistake nor without consideration, unless it be shown that the instrument was fraudulent in its inception, or that the consideration was illegal, or that the facts and circumstances which impeach the transaction, 633 as between the acceptor and the drawer, were known to the payee or subsequent indorsee at the time he became the holder of the instrument. . .... Different rules apply between the immediate

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parties to a bill of exchange—as between the drawer and the acceptor, or between the payee and the drawer—as the only consideration as between those parties is that which moves from the plaintiff to the defendant; and the rule is, if that consideration fails, proof of that fact is a good defense to the action. But the rule is otherwise between the remote parties to the bill, as, for example, between the payee and the acceptor, or between the indorsee and the acceptor, as two distinct considerations come in question in every such case where the payee or indorsee became the holder of the bill before it was overdue and without any knowledge of the facts and circumstances which impeach the title as between the immediate parties to the instrument. Those two considerations are as follows, first, that which the defendant received for his liability, and secondly, that which the plaintiff gave for his title, and the rule is well settled that the action between the remote parties to the bill will not be defeated unless there be an absence or failure of both these considerations. Unless both considerations fail in a suit by the payee against the acceptor, it is clear that the action may be maintained, and many decided cases affirm the rule, where the suit is in the nanie of a remote indorsee against the acceptor, that if any intermediate holder between the defendant and the plaintiff gave value for the bill, such an intervening consideration will sustain the title of the plaintiff.”

It is claimed that the allegation in this case, that not only the drafts but the bills of lading were purchased by the bank, distinguishes it from those cited where the bills merely accompanied the drafts as security. The facts alleged in the petition do not show this to have been other than the common transaction in which money is paid for drafts accompanied by bills of lading, representing the goods consigned as security. The allegation is that the drafts and bills of lading were indorsed in blank and were transferred to and purchased by the bank. The conclusion from these facts is then stated: “Whereby said bank became and was the owner of said drafts and bills of lading and of the cotton represented.” This is only a conclusion from the facts previously stated and can not be held to enlarge the legal effect of those facts. The drafts were for the price of cotton which the drawer was under obligation to deliver to the drawee on payment. The bank's right was therefore only to receive the amount called for by the drafts, and, on payment thereof, it was bound to deliver to the payor the bilis of lading representing the cotton. The bank became the swuer,

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