# La Sara Grain Co. v. First National Bank of Mercedes

> Texas Supreme Court · May 23, 1984 · 27 Tex. Sup. Ct. J. 382

URL: https://www.frixlaw.com/law-library/cases/9776666

## Case

- **Full name:** LA SARA GRAIN COMPANY, Et Al., Petitioners, v. FIRST NATIONAL BANK OF MERCEDES, Texas, Respondent
- **Court:** Texas Supreme Court
- **Decided:** May 23, 1984
- **Citations:** 27 Tex. Sup. Ct. J. 382; 673 S.W.2d 558; 38 U.C.C. Rep. Serv. (West) 963; 1984 Tex. LEXIS 351
- **Precedential status:** Published
- **Opinion:** On rehearing by Barrow
- **Judges:** Spears, Barrow
- **Cited by:** 403 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776666

## How later opinions describe it (automated extraction)

- holding that deposit creates an implied agreement that bank will disburse funds only in accordance with depositor’s instructions
- holding that “an obligation of good faith is imposed on the performance of every contract or duty with the [Texas Uniform Commercial] Code” and citing the § 1.203, the predecessor provision relating to the duty of good faith
- holding that a lender "may be subject to a [Deceptive Trade Practices Act] claim if the borrower’s 'objective' is the purchase or *1294 lease of a good or service thereby qualifying the borrower as a consumer”
- holding bank liable for paying checks on an unauthorized signature under Tex.Bus. & Com.Code Ann. § 4.406 where bank paid cheek drawn from La Sara’s account by employee with signa-toe authority despite corporate resolution requiring bank to pay checks only upon the signatures …
- holding that pure extension of credit does not constitute “goods or services,” and therefore borrower in this transaction will not qualify as consumer under Deceptive Trade Practices Act

## Opinion text

ON MOTION FOR REHEARING
BARROW, Justice.
The bank argues that it is entitled to have the cause remanded to the court of appeals for consideration of a factual insufficiency point of error. The court of appeals did not rule on a contention that there was factually insufficient evidence to support the trial court’s finding that the bank had actual knowledge of the unauthorized change in the signature card. The bank’s point of error in the court of appeals, however, asserted that 47 separate findings of fact, including the one at issue here,
are contrary to the undisputed testimony in the cause, and there is no evidence to support them, or, in the alternative, are based upon insufficient evidence, and are contrary to the great and overwhelming preponderance of the evidence in this case.
Such a point of error does not “sufficiently direct the court’s attention to the nature of the complaint made regarding each such ... finding.” Tex.R.Civ.P. 418(d). Nor are “separate record references” made concerning each finding. Id. Moreover, the factual sufficiency point, a distinct legal theory from a no evidence attack, was not separately briefed. The only references to the record state that the “undisputed evidence shows” or “it must be clear” or the like. This type of briefing refers to legal, not factual, insufficiency. Holley v. Watts, 629 S.W.2d 694 (Tex.1982). Points of error not separately briefed are waived. Burgess v. Sylvester, 143 Tex. 25 , 182 S.W.2d 358 (1944). We hold that this point of error does not entitle the bank to a remand. See Great American Insurance Co. v. Langdeau, 379 S.W.2d 62, 74 (Tex.1964).
The motions for rehearing are overruled.
BARROW, J., dissents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776666. Public record. Not legal advice.