The opinion
On Appellee’s Motion for Rehearing.
. HICKMAN, J.
Appellee seems to have construed our opinion as holding that, in the absence of proof to the contrary, it will be presumed that the two banks were the same institution. We cannot understand how the opinion could be so construed. Certainly the burden is on a party alleging a fact to prove it. ■ What we hold is that appellant discharged the burden and made out a prima facie .case of identity, which was not as a matter of law overcome, and it was therefore error to withdraw the case from the jury. We will quote practically all of the material testimony in the record which seems to bear upon this subject. A. E. Boole, president of the Abilene State Bank and former president of the Guaranty State Bank, testified:
“That was the Guaranty State Bank at that time. Since that time the Guaranty State Bank has gone out of business and the Abilene State Bank has taken its place.”
“When this bank was organized, it was known as the Guaranty State Bank.”
“Answering if it is not a fact that it was aft-erwards taken over by the same people and run, and was the same bank with the exception of a different name, it was run under a different name and there were some different stockholders. The Abilene State Bank took all of its business over. As to it being true that it belongs to the same institution, with some different stockholders, it was taken over by the Abilene State Bank.”
“I was representing this bank in making the loan.”
Sam Swan, cashier of the Guaranty State Bank at the time it was taken over by the Abilene State Bank, and who was also cashier of the Abilene State Bank until July, 1922, testified:
“I think the Abilene State Bank took over the Guaranty State Bank about May, 1922. The Abilene State Bank had a different charter from the other bank. There is very little difference in the stockholders.
The AMlene State Bank was reorganised with practically the same stockholders.
In other words, if you had
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an account in there it was carried right on.
It was the same institution, you might say.”
(Italics ours.)
This testimony, in our opinion, was sufficient to make out a prima facie case that the Abilene State Bank was but a reorganization of the Guaranty State Bank, and that they were the same institution. The question which we discussed was whether or not the mere fact that one witness testified that appellee bank had a different charter within itself, as a matter of law, ov.ercame this prima facie case conclusively and warranted the giving of a peremptory instruction against appellant. Under the authorities cited in our former opinion, we held that it did not have this effect. We quoted from our Supreme Court, speaking through Chief Justice Brown. A study of the opinion there cited, together with the opinion of the Court of Civil Appeals in that same case reported under the style of Supreme Ruling of Fraternal Mystic Circle v. Ericson, 131 S. W. 92 , discloses that in that case the two corporations had separate charters. Six of the incorporators of the second corporation were not even members of the first, and, for a short time after the creation of the second, each was carrying on business. The Court of Civil Appeals held, as a matter of laiv, that the trial court erred in holding the two corporations were one and the same. The Supreme Court reversed the decision of the Court of Civil Appeals on this point, and held that the fact of separate charters did not, as a matter of law, constitute the two corporations separate entities. The other authorities cited support the proposition. It is interestingly discussed in the Eppler Case cited by us, but the exact point not decided. The New Jersey case clearly decides it. If there is any authority to the contrary, able counsel have not cited this court to it.
Appellee calls upon the court for additional findings of fact. In response to the request, we find that about February, 1922, Cozart bought out Matthews’ interest in the business, and at that time appellant, Goodwin, knew the condition of the business, what was in it, the value of it and everything of that kind. That is a substantial statement of the testimony of appellant. We do not find, however, any testimony that appellant knew at that time what application had been made of the proceeds of the original loan. We find that on May 2, 1922, appellant executed the following instrument:
“Abilene, Texas, May second, 1922.
“Abilene State Bank, Abilene, Texas — Gentlemen: In or¡ier that D. E. Cozart may handle his business to a better advantage, it seems necessary that Ms line of credit with your bank be increased. In addition to the $7,000 note, which I have executed with D. E. Cozart, this is your authority to extend him an additional line not to exceed $4,000, and for which he will from time to time execute his promissory note, which notes will be for short time.
“I hereby bind myself to protect such line of credit and guarantee said Abilene State Bank against any loss from such transactions.
“Yours truly, W. C. Goodwin.”
We find tl^at no officer of the bank was ever asked by appellant a specific question as to the amount of the liabilities of Matthews or of what assets he had at the tihie the original note was executed. We find that these specific inquiries were not made, but that the inquiry as .to Matthews’ business as disclosed in our opinion called for any information within the bank’s knowledge.
We find that Cozart, in buying into the business of Matthews, became a partner with him, acquiring a one-half partnership interest with Matthews in the assets of the busi-' ness. We do hot find that Cozart assumed any liabilities. He denied that fact.
We find that there is no testimony in the record to the effect that the business of buying and selling grain and flour is not a good business; the testimony being silent on this point.
We are requested -to find that Goodwin made no inquiries of any one until about November, 1923, as to what application was made of the proceeds of the original note. We cannot so find. The record discloses that no inquiry was made of Poole until that time, but there is no testimony that inquiry was not made by Goodwin of other persons.
We are asked to find that both of the banks were corporations having separate charters and were separate entities. We devoted a good portion of our opinion in trying to say that it was not conclusively shown that they were separate entities, and cannot, therefore, find that they were separate entities. We find that the Abilene State Bank had a different charter to that of the Guaranty State Bank; each being a corporation. We find that the Guaranty State Bank ceased to do business, and the Abilene State Bank took over all of its assets on May 1, 1922, and continued to do the same character of business in the same location.
Attorneys for appellee request a finding that:
“The proceed? of the $7,000 note, discounted in November, 1921, was credited to the account of Matthews & Cozart in the Abilene State Bank, and shortly, thereafter approximately $6,0CÍ0 of the proceeds of this note was credited to the bill of exchange of Matthews and charged against the account of Matthews & Cozart by the Abilene State Bank. The indebtedness of Matthews so charged against the account of Matthews & Cozart was a bill of exchange and a liability of the firm of Matthews & Cozart.”
We do not find that the bill of exchange was a liability of the firm of Matthews & Cozart, because such liability is denied by
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Oozart. It is indeed interesting to note that trained' and learned counsel, familiar with all the evidence concerning the facts and circumstances surrounding the execution of the original note, should, in this request, refer to the Abilene State Bank as the bank which appropriated about $6,000 to the payment of Matthews’ debt to it. This probata would certainly correspond with the allegata. However strongly the evidence may suggest that this bank was the alter ego of the other, consistency requires that we still adhere to the holding that the evidence on this question raised a fact issue to be determined by the jury.
The other findings requested are clearly covered in our former opinion.
We have carefully considered the motion for rehearing, but, being convinced that the testimony raised issues of fact which should have been determined by the jury, the motion is overruled.'