Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63. Page: 53
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1885.] TEXAS L. & C. Co. V. CARROLL & ILER. 53
Opinion of the court.
On the trial, however, it appeared that the instrument had been
transferred to Doddridge & Davis by the appellees, and that they
had paid them for it; and when offered in evidence it still bore the
indorsement by which it was transferred to Doddridge & Davis,
and on this account it was objected to.
It appears that, after Underwood, Clarke & Co. refused to pay it,
it was returned to Doddridge & Davis, and that appellees repaid
them the money which they had received on it, and took back
the instrument as their own property, without any formal retransfer.
This being true, the court did not err in permitting the appellees
to strike out their indorsement.
If nothing further than the indorsement had appeared, the presumption
would be, when the paper was found in the hands of the
payees, that the transfer had not been completed by delivery; that
it had been returned to them as their own property, or that it
had been transferred only for collection, and in such cases the right
of the payee, even of a negotiable instrument, to strike out the indorsement
is clear. Dugan v. United States, 3 Wheat., 172; Dollfus
v. Frosch, 1 Denio, 367; Caldwell v. Evans, 5 Bush, 380; Building
Association v. Weber, 34 Md., 669; Beeson v. Lippman, 52 Ala.,
276; Pitts v. Keyser, 1 Stewart (Ala.), 154; Best v. Bank, 76 Ill.,
609; Daniel on Neg. Inst., 1198.
It appears, however, that the instrument was at one time the
property of Doddridge & Davis by a transfer which, by the statutes of
this state, vested in them the legal as well as equitable title to the
paper; that this transfer was not made solely for the purpose of collection
for the appellees. R. S., 268, 269. This being true, it was
incumbent on the appellees to show that they were its owners at the
time the suit was brought. Pitts v. Keyser, 1 Stewart (Ala.), 155;
Daniel on Neg. Inst., 1199. There was neither averment nor proof
that the appellees were the owners at the time the suit was brought;
and without this, the action could not be maintained, it having been
shown that the appellees had parted at one time with the legal title
as well as the beneficial interest in the paper.
The only evidence is, that they were owners at the time of the
trial. When they so became does not appear, and no presumption
that they were the owners at the time the suit was brought arises
in the absence of an averment of that fact.
This matter is not clearly presented by the assignments of error;
but the appellees have suggested delay, and asked damages, which
opens up the entire record, and for this defect, which is a substantial
one, the judgment will have to be reversed.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Tyler term, 1884, and the Galveston term, 1885. Volume 63., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28511/m1/77/: accessed April 23, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .