author: GRAVES, J.

text:
    PALATINE INS. CO., Limited, v. COYLE et al.
    (No. 7406.)

    (Court of Civil Appeals of Texas. Galveston.
    May 30, 1917.
    Rehearing Denied June 14, 1917.)
    1. Contracts <&wkey;189 — Construction—Subject-Matter.
    The subject-matter of a contract must be considered in determining the meaning, scope, and extent of its language.
    [Ed. Note. — Ear other cases, seep Contracts, Cent. Dig. §§ 811-845, 900-902, 905.]
    2. Contracts &wkey;>174r — Construction—Exceptions.
    Exceptions contained in a contract will be presumed to relate to matters that not only are relevant to the contract, but also would be embraced within its terms if not expressly excepted therefrom.
    [Ed. Note. — For other cases, see Contracts, 'Cent. Dig. § 765.]
    3. Insurance 4&wkey;423 — Tornado Policy — Di-ability of Insurer — Damage from Wind-Driven Water.
    Under a policy insuring against “loss or damago by a tornado, windstorm, or cyclone * * * except as hereinafter provided,” and thereafter providing that the insurer should not bo liable for a loss occasioned by tidal waves or high water or for any loss caused by water or rain driven by wind, or unless the insured building should sustain damage to the roof or walls by force of the wind, and should then be liable only for such damage to the interior of the building or the insured property therein as might be caused by water or rain entering through openings made in the roof or walls by the direct action of the wind, the insurer was not liable for damage caused by wind-driven water, the combined action of wind and water waves, especially where there was no evidence that wind-driven water damage either necessarily or invariably attended windstorms in that vicinity.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1127.]
    Error from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by B. A. Coyle and another against the Palatine Insurance Company, Limited. Judgment for plaintiffs, and defendant brings error.
    Affirmed in part, and reversed and rendered in part.
    Williams & Neethe, of Galveston, and Locke & Locke, of Dallas, for plaintiff in error. Stewarts, of Galveston, for defendants in error.

      Application for writ of error pending in Supreme Court.

   GRAVES, J.

A general statement of the case adopted by both parties is thus made:

This suit was brought by B. A. Coyle and J. H. Langbehn against the Palatine Insurance Company, Limited, to recover under a' tornado policy issued by it on a two-story brick veneer tile roof apartment building at 913-923 Boulevard street, city of Galveston, for damage suffered in the storm of August 16-17, 1915. The company defended on the ground that the damage claimed resulted in part from causes excepted from the policy, which provided that the company should not be liable for any loss or damage occasioned directly or indirectly by any tidal wave, high water, overflow, or cloudburst, or for any loss or damage caused by water or rain, whether driven by wind or not, unless the building insured should first sustain an actual damage to the roof or walls of the same by the direct force of the wind, and that the company should then be liable only for such damage to the interior as might be caused by water or rain entering through openings first made by the direct action of the wind.

In the course of the suit an agreement was reached, as a result of submission to a committee of contractors, that the total loss and damage to the insured property during the storm from all causes was $4,512.43, of which the loss and damage caused by the direct action of the wind independently of water in any form was $500, and the loss or damage to the interior caused by water or rain entering through openings in the roof or Avails made by the direct action of the wind alone, independently of water in any form, was $660; the remaining damage of $3,352.43 being due to the combined action of wind and water.

The company offered to pay the plaintiffs the two sums first mentioned, aggregating $1,160, but the plaintiffs refused to accept the same, demanding payment of the total damage. The sole controversy in this, case is over the liability for the remaining damage.

The case was tried before the court without a jury on agreed facts, and resulted in a judgment for the plaintiffs .for the total damage claimed, $4,512.43, with interest and costs of suit. The defendant thereupon brought the case to this court by writ of error for the revision of the judgment.

We also insert the material provisions of the policy sued upon:

“The Palatine Insurance Company, Limited, of Lopdon, England, * * * does insure B. A. Coyle * * * against all direct loss or damage by tornado, windstorm, or cyclone, except as hereinafter provided, to an amount not exceeding twelve thousand and 00/ioo dollars, to the following described property. * * * This policy is made and accepted subject to the fol-loAving stipulations and conditions printed on the back hereof, which are hereby specially referred to and made a part of this policy.”

On the back of the policy are provisions as follows:

“This company shall not be liable for any loss or damage * * * occasioned directly or indirectly by or through any fire, explosion, tidal wave, lightning, high water, overflow, cloudburst * * *.
“This company shall not be liable for any loss or damage caused by water or rain, whether driven by wind or not, unless the building insured or containing the property insured shall first sustain an actual damage to the roof or walls of same by the direct force of the wind; and shall then be liable only for such damage to the interior of the building or the insured property therein as may be caused by water or rain entering the building through openings in the roof or wall made by the direct action of the wind.”

The specific finding of the above-mentioned committee, and therefore the agreed statement of fact, as to the damage over which the controversy arose, was the following:

“That the loss and damage to the said building, exterior and interior, resulting from the combined action of the wind and water in whatever form, omitting damage to the interior included in the next preceding item of this award, was $3,352.43.”

In reference to this finding the litigants made this agreement:

“Committeemen appointed by the parties to this suit, in pursuance of a written agreement referred to in the preceding paragraph, having found that certain loss or damage resulted from the combined action of wind and water, it is agreed that as to such loss or damage so found by the committeemen it is impossible to determine to what extent each was an element or factor with the other in causing such loss or damage.”

Among the most pertinent provisions concerning the storm, the location of the insured building, and general conditions at Galveston, contained in the agreed statement of facts, are the following:

Galveston Island is a sand island in the Gulf of Mexico just off the coast of Texas, approximately 30 miles long and with a width varying from 1% to 3 miles. It has no mountains or hills, nor any rivers, streams, or lakes. It is substantially fiat. Its course is from southwest to northeast parallel with the southeast, coast of the state. The city of Galveston is on the eastern or northeastern end of the island and extends westwardly or southwestwardly from such end a distance of approximately 4 miles. To the northeast of Galveston is Bolivar Peninsular, a sand spit about 20 miles in length and.varying in width from one-fourth of a mile to about 8 miles. Inside of Galveston Island and Bolivar Peninsular is Galveston Bay, a shallow body of water with an area of nearly 500 square miles.

In the Gulf of Mexico in the vicinity of the West India Islands tropical storms have •developed regularly and frequently for a century or more. These storms are commonly known as West Indian hurricanes and are attended by high winds, high water, and high waves.

In September, 1900, such a hurricane of great violence visited the city of Galveston. During the storm the whole island was inundated with water to a depth on Broadway varying from 5 feet to 10 feet. All houses located within a distance of 4 to 6 blocks from the Gulf were destroyed.

Following the storm of 1900 a concrete sea wall about 16 feet 6 inches thick at the base and 5 feet 6 inches thick at the top and of a height of 17 feet above mean low tide was constructed from a point commencing at the northeast end of the island, being the point from which' the south jetty projected, and continuing across the east or northeast end of the island to the Gulf front and south-westwardly along the Gulf front a distance of about 2y2 miles. Thereupon the general ground level óf the island within the city, limits south of Broadway avenue and between it and the sea wall was raised by bringing in from the Gulf and depositing fine sand thereon.

The property in question is shown' to have had an elevation of 10 feet above mean low tide after the grade raising had been completed. The building on account of which the claim is made for loss or damage was built after the grade raising had been completed and on. the filled ground, and its foundation did not extend below the fill.

Another severe storm visited Galveston in 1909, but did comparatively little damage. However, following it, the level ground over a strip about 250 to 300 feet wide and just inside of the sea wall was slightly raised so that for a distance of 200 feet from the sea wall the water would drain toward the Gulf. After this had been done, no change in conditions occurred until the storm of August 16-17, 1915.

On August 16-17, 1915, the city of Galveston was visited by another severe storm, attended, as before, by high wind, high water, and high waves. Compared with the storm of September 8, 1900, the pressure was not quite so low, and probably the wind was not quite so high, but the duration was nearly three times as great, and, from the best information obtainable, the tide was somewhat higher. The wind became of recognizable characteristic puffs of the hurricane in the forenoon of August 15th, almost two days before the storm reached its worst, and the Gulf waters became rough as the wind increased and drove them against the sea wall. A large part of the property damage in this storm resulted, not from the' direct force of the wind, but from the high tide which flooded the business district to a depth of from 5 to 6 feet and damaged stocks of goods in both the wholesale and retail districts. Great property loss was occasioned by washing of sand from under buildings, causing their overturning or collapse. In this way approximately 200 residences were undermined and more or less seriously damaged. At its highest the water in the retail business district was approximately 5 feet above the street level; the streets being about 6.5 feet above mean low tide.

WJith the case thus made, we are again called upon to construe identically the same form of insurance policy recently passed upon by this court in the case of Palatine Insurance Co., Limited, of London, England, v. Steve Petrovich, 197 S. W. — , opinion filed March 26, 1917. The cases are in all essential respects alike, except in the following particulars: In the Petrovich Case the suit was not for any damage to the interior of the insured building, but for its total loss, the last above-quoted provision in the policy being accordingly inapplicable, and the court found as a fact that the entire loss was the direct result of the wind and was not due directly or indirectly to high water; while in the present case part of the damage was to the interior of the building, which made this last-quoted provision in the policy directly applicable, and in the agreed statement of facts, as above recited, it was admitted that the $3,352.43 of the total damage was caused by the combined action of the wind and water. But the legal question upon the construction of the policy is precisely the same in both cases, and that, under the admitted facts here, is the only one presented by this appeal. Advised of its special importance, and much aided by the very able briefs and arguments submitted by both parties, we have for the second time given this question careful consideration, but find ourselves unable to change the view expressed in the Petrovich Case. In the course of that opinion it was said:

“We think that the policy by its terms was essentially and plainly a wind-damage policy. In making the contract with the insured therein contained it was 'very evidently intended by the insurance company not to insure him against the very kind of a loss he here sustained; that is, one caused either directly or indirectly by water.
“Without refining upon the degree of causation by the highwater necessary, we think it is sufiicient to say that, to our minds, it is quite clear that the water was at least a proximate cause of the loss suffered, and that is enough, under our interpretation of the contract of insurance as made, to bring it within the exceptions. The obligation, as undertaken by the insurance company, was not a divisible one, under which it might be held liable for any part of the loss or damage shown to have been proximately caused by or through the high water, although the other part was due to the direct action of the wind alone. If such had been the legal effect of the contract, it would have been necessary for the court and jury to distinguish between these two recoverable elements of damage, and, however difficult it may have proven, to both find and apportion to each its proper and proportionate amount of the actual loss. Warmcastle v. Scottish U. & N. Ins. Co. [201 Pa. 302] 50 Atl. 941. But the contract here does not so read. It is an insurance against wind alone, and not against loss occasioned partly by wind and partly by high water. The physical conditions surrounding the property at the time, which both parties must be held to have had in contemplation in making the contract, leave no doubt of their intention to except from the policy just such a loss as the present one.
“Galveston Island, on which the insured building stood, has no lakes, streams, or rivulets. The building itself was on dry land several feet above the sea level, and entirely secure, save in extraordinary winds, from water damage. The exceptions in this wind damage policy could have had reference only to the water damage occurring during, or as a result of, such extraordinary winds.”

And the following authorities were cited: National Fire Ins. Co. v. Crutchfield, 160 Ky. 802, 170 S. W. 187, L. R. A. 1915B, 1094; Hartford Fire Ins. Co. v. Nelson, 64 Kan. 115, 67 Pac. 440; Warmcastle v. Scottish U. & N. Ins. Co., 201 Pa. 302, 50 Atl. 941; Maryland Casualty Co. v. Finch, 147 Fed. 388, 77 C. C. A. 566, 8 L. R. A. (N. S.) 308; Stover v. Insurance Co., 3 Phila. (Pa.) 38; Beakes v. Insurance Co., 143 N. Y. 402, 38 N. E. 453, 26 L. R. A. 267; Holmes v. Insurance Co., 98 Fed. 240, 39 C. C. A. 45, 47 L. R. A. 308.

Indeed, the subject-matter of the policy is solely and exclusively “direct loss or damage hy tornado, windstorm, or cyclone.” Indemnity for such loss or damage is the only promise contained in the policy, and such promise is expressly qualified by the phrase “except as hereinafter provided.” This qualification embraces several exceptions, including those relating to 'damage by water.

It being submitted that the damage here involved was caused by combined action of wind and water, and that it is impossible to determine to what extent each was an' element or factor with the other in producing it, the water was therefore one of its essential and inseparable causes.

It is an elementary rule of interpretation that the subject-matter of a contract must be considered in determining the meaning, scope, and extent of any of its words or provisions. Jones on Construction of Contracts, par. 220; Beal, Cardinal Buies of Interpretation, p. 71; Black on Interpretation of Laws, par. 62, p. 171; Maxwell, Interpretation of Statutes (5th Ed.) p. 85 et seq.

It is presumed that exceptions contained in a contract relate to matters that not only are relevant to the contract, but also would be embraced within its terms, if not expressly excepted therefrom. Black on Interpretation of Laws, par. 130, p. 432; Endlich on Interpretation of Statutes, pars. 184-186.

Applying these elementary rules to the policy in suit, it seems plain that the exceptions were inserted to make sure that the company’s promise of indemnity did not extend to certain loss or damage, which might be held attributable to the wind, and which therefore, but for such exceptions, might be held to be covered by such promise. The exceptions aré unmeaning and useless, if inserted to protect the company from liability for damage hy water occurring independently of wind, because, as we think, the policy does not purport to cover anything but damage from wind. If the words “except as hereinafter provided” are applied to this subject-matter with regard to which they are used, and are given any effect at all, they can mean nothing else, it seems to us, than that the insurance company does not assume the risk of such “loss or damage by tornado, windstorm, or cyclone” as is thereinafter in those excepted provisions specified.

The proper rule of construction of this kind of insurance contract, we think, is succinctly stated in Luckett-Wake Tobacco Co. v. Globe & Butgers Fire Ins. Co. (C. C.) 171 Fed. 147, as follows:

“The only loss insured against or which is covered by the policies is ‘loss by fire,’ and wo do not doubt that the exception in the policies of loss caused directly or indirectly by ‘riot’ must include those from fixe which are the work of rioters. The excepting clause necessarily relates back to a ‘loss by fire,’ as that phrase is previously used in the policy; otherwise the excepting clause is meaningless as referring to a loss not covered by the insurance. When we lay out of view all the intervening and inapplicable clauses in the policy, and endeavor to bring into juxtaposition those clauses which bear upon the question now' involved, we think the only fair and sensible construction of the contracts is that the policies insured the plaintiff against direct loss by fire except as further therein provided, to the effect that the defendant shall not be liable for any loss caused directly or indirectly by riot. If the loss was not by fire, it was not insured against at all, and the excepting clause was useless. If the loss was by fire, it was insured against, unless the fire bringing about the loss was caused directly or indirectly by riot. If the latter, the loss comes within the excepting clause; but in the former the loss was not insured against at all, so that in either event the defense is good. That this is the fair and natural interpretation of the language of the parties in the contract sued on we do not doubt, and we think these conclusions are supported by the decisions in Insurance Co. v. Boon, 95 U. S. 117 [24 L. Ed. 395]; Insurance Co. v. Tweed, 7 Wall. 44 [19 L. Ed. 65]; and Montgomery v. Firemen’s Ins. Go., 16 B. Mon. (Ky.) 442.”

To the same general effect are the following cases: Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7, 116 S. W. 234, 20 L. R. A. (N. S.) 277, 136 Am. St. Rep. 164; Ins. Co. v. Express Co., 95 U. S. 227, 24 L. Ed. 428; United Life, Fire & Marine Ins. Co. v. Foote, 22 Ohio St. 340, 10 Am. Rep. 735; Montgomery v. Insurance Co., 55 Ky. (16 B. Hon.) 427; St. John v. Insurance Co., 11 N. Y. 516; Neilson v. Com. Mut. Ins. Co., 3 Duer (N. Y.) 456; Michigan Eire & Marine Ins. Co. v. Whitelaw, 25 Ohio Cir. Ct. R. 197; Webb v. Ætna Protection & Ins. Cos.. 14 Mo. 3.

Turning now from the terms of the contract as in themselves indicating the intent of its ipakers, to the stated physical conditions furnishing the setting for its operation, it is apparent that no probability even of any damage by water, except in extraordinary winds, could have been in mind and intended to be insured against, because the only water there from which damage might be anticipated was in the Gulf and bay ; but the sea wall and grade raising had lifted this building high above the ordinary variation of the tides, and had rendered it entirely secure so far as any danger from this only water present was concerned, except during these periodic visitations by cyclone winds; hence, with the history of the great storm of 1900, and its fearful toll of thousands of lives from drowning in the high waters, as likewise that of the lesser storm of 1909, in mind, we think the natural and plain meaning of the language here used is that the risk from wind was assumed, but not that from water. In view of the almost certain recurrence in the future of like effects from similar storms to these it well knew about, the assumption seems reasonable that this insurance company was unwilling in the kind of policy issued, its “tornado” policy, for the premium charged, to carry any other risk than that from wind. That it had the right to so restrict its liability, if such was in fact the purpose, goes without saying. Upon this point the court in Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7, 116 S. W. 234, 20 L. R. A. (N. S.) 277, 136 Am. St. Rep. 164, supra, say:

“Unless it was intended by the contracts of insurance to relieve the companies from liability f-or fire caused by riot, the words ‘except as hereinafter provided’ are absolutely meaningless. The companies had the unquestioned right to insert as many reasonable provisions in the policies exempting them from liability as they thought proper or necessary. We know of no rule of law that denies to insurance companies this privilege. They may limit the amount of insurance they will offer, may limit the species of property they will insure, may provide reasonable conditions that the insured must observe, as well as conditions that will in certain states of case operate as a forfeiture of the policies or waiver of the right of the insured to recover upon them, and may protect themselves from loss resulting from causes that they do not desire to offer indemnity against. TOiy, then, should these words by which the companies undertook to limit their liability be stricken from the policies or ignored in their construction? They are not obnoxious to any pi’inciple of law or public policy. They are not surplus-age. They are not in conflict with any other provisions in or words of the policies. They may be read harmoniously in connection with the other and subsequent clauses, and, when so read, become a material intelligent part of the contracts. They were inserted for a purpose, intended to have a meaning, are not of doubtful or uncertain import, and, when fairly apd reasonably applied, they exempt the companies for loss by fire when the fire is caused by riot.”

But the opposing view to these conclusions is thus stated by defendant in error:

“The hurricane, in consequence of which the water was blown over the sea wall and upon Galveston Island, must be considered .as the predominant, the efficient, the 'proximate, the responsible cause of the damage done to the building, the cause which set the water in motion and gave to it its efficiency for harm at the time of the disaster; and the excepting clauses are repugnant to the main insuring clause of the policy, which is against ‘loss or damage by tornado, windstorm, or cyclone,’ under the conditions shown by the agreement to have existed for many years on Galveston Island.”

His argument, presented with much earnestness and great ability, is that, under the rule requiring construction of inconsistent or ambiguous -policies most favorably for the assured, the loss here suffered was necessarily covered by the terms of the¡ policy, because high water and wind-driven waiter damage was, within the knowledge of the insurer who framed the insuring clause and the exception, an invariable incident of tornado and hurricane damage on Galveston Island; that, since each hurricane occurring at Galveston has been attended with such water damage, insurance against tornado and hurricane damage must, in order to give any effect to the policy, include liability for the natural incidental damage which uniformly attended the hurricane.

In support of these positions the following authorities, among others, are cited: The G. R. Booth, 171 U. S. 460, 19 Sup. Ct. 9, 43 L. Ed. 234; Insurance Co. v. Tweed, 7 Wall. 44-53, 19 L. Ed. 65; Insurance Co. v. Boon, 95 U. S. 131, 24 L. Ed. 395; Insurance Co. v. Norwich & N. Y. Trans. Co., 12 Wall. 194, 20 L. Ed. 378; Insurance Co. v. Charleston Bridge Co., 65 Fed. 630, 13 C. C. A. 58; Spensley v. Lancashire Ins. Co., 54 Wis. 433, 11 N. W. 902; Bills v. Insurance Co., 87 Tex. 551, 29 S. W. 1063, 29 L. R. A. 706, 47 Am. St. Rep. 121; Brown v. Insurance Co., 89 Tex. 590, 35 S. W. 1060; Harper v. Insurance Co., 22 N. Y. 441; Pindar v. Insurance Co., 36 N. Y. 648, 93 Am. Dec. 544; Whitmarsh v. Conway Fire Ins. Co., 16 Gray (Mass.) 259, 77 Am. Dec. 414; Insurance Co. v. Updegraff, 43 Pa. 350; Goddard v. Insurance Co., 67 Tex. 69, 1 S. W. 906, 60 Am. Rep. 1.

While much impressed with the force of this contention, we think it assumes more than the evidence shows. There is no such proof in this record as that such wind-driven water damage as occurred here either necessarily or invariably attended these windstorms; on the contrary, the exact proof was:

“These storms are commonly known as West India hurricanes, and are attended by high winds, -high water, and high waves.”

This is far from saying, as this argument under review does, that wind-driven water damage uniformly attended these hurricanes as a natural incident thereof; and right here is precisely where we think the vice in the whole argument lies, and wherein is found the key to differentiation between the authorities invoked to sustain it and those we have cited in support of our own conclusions. If the facts are as stated, merely that “these hurricanes are attended by high winds, high water, and high waves,” and the parties by plain and direct agreement have excepted out of their contract all damage caused or occasioned directly or indirectly by the water and the waves, in the face of agreed evidence that the damage sustained resulted from the combined action of wind and water, why go further hunting for the predominant, efficient, proximate, and responsible cause of such a loss? If the evidence had shown that such a hurricane could not possibly occur without such actual water damage as here resulted as its natural and necessary incident, then the interpretation placed upon this policy by defendant in error might be the proper one, and his cited authorities might apply; but in the utter absence of such proof, or of the possibility of making it, and in the face of what seems to us a plain agreement to the contrary, not only as to the physical facts, but also as to the meaning of the policy, we are unable to yield to his view.

It follows that, in our opinion, the insurance company was not liable for that part of the damage caused by the combined action of the wind and water. The facts having been fully developed, it becomes our duty to here render such judgment as should have been rendered in the court below. Accordingly so much of the trial court’s judgment as represents the aggregate of the above-mentioned items of $500 for damage caused by. the wind alone, and of $660 for damage to the interior, caused by water or rain entering through openings first made by the wind, to wit, the sum of $1,160, with interest, will be affirmed; while so much of that judgment as represents the loss or damage shown to have resulted from the combined action of wind and water, that is, the sum of $3,352.43, will be reversed, and rendered in favor of plaintiff in error.

Affirmed in part. Reversed and rendered in part.
      ÉtssFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: CONNER, C. J.

license: Public Domain

text:
    McCULLOH v. REYNOLDS MORTGAGE CO.
    (No. 8469.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 2, 1917.)
    1. Trial <@=>213 — Instructions—Requests.
    Requested instruction, calling for finding whether the contract was breached, calls for answer to a question of law, rather than of fact; many and various breaches being alleged.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 480.]
    2. Trial <&= 191(1) — Instructions—Requests —Assuming Facts.
    A requested instruction, assuming as a fact a thing in issue under the pleadings and evidence, is bad.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420, 421, 435.]
    3. Contracts _ <@=>322(3) — Evidence—Breach.
    _ Evidence, in action for breach of contract to furnish money to be loaned, that at the time and place demand for loans was “keen” does not show that plaintiff could have loaned the money on the conditions as to nature of security required by the contract.
    [Ed. Note. — For other eases, see Contracts, Cent. Dig. § 1534:]
    4. Trial <@=>255(1) — Instructions — Necessity for Requests.
    Mere failure of instruction to define a party’s duties requires a request for an instruction covering the omission.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-629.]
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Action by G. T. McCulloh against the Reynolds Mortgage Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. W. Moffett and Eugene 'De Bogory, both of Abilene, for appellant. J. M. Wagstaff, of Abilene, and Samuels & Brown, of Ft. Worth, for appellee.
   CONNER, C. J.

Appellant instituted this suit against the appellee for damages arising out of an alleged breach of a contract of the following tenor, to wit:. Appellant alleged that the appellee was engaged in the business of loaning money upon real estate with its principal office in Ft. Worth, Tex.; that appellant at the time of entering into the contract was a resident citizen of Haskell county, and that appellee agreed with appellant that if he, appellant, would move to the'city of Abilene, appellant should have the agency of the company in the counties of Taylor, Callahan, Nolan, Fisher, north one-half of Runnels and the south one-half of Jones at an agreed commission of 2 per cent, to he paid by appelleé upon all loans secured; that ap-pellee represented through its agent who entered into the contract, C. T. Burns; that the appellee company had about the sum of $10,000,000 that it expected to loan within a district composed of some 54 counties, of which the territory assigned» to appellant was a part; that it was agreed that appellant should have his proper proportion of said amount to loan; and that his employment should continue until the money was all gone. It was alleged that pursuant to the contract appellant had moved to Abilene at an expense specified in the petition; that he had duly entered upon the terms of his employment, and had made numerous loans; that upon loans actually made by him, the appellee had paid the commissions as specified in the contract, but that on numerous other loans specified in the petition appellee had failed to promptly inspect the lands as had been specially agreed upon, whereby he was damaged; tha!t numerous loan®, specified in the petition, had been accepted, but because of delay on appellee’s part the applicants had later taken loans out elsewhere, by reason of which the appellant had been damaged; that in other instances the appellant had delivered to the appellee applications for loans, also specified in the petition, in a large amount which the appellee had failed and refused to inspect; that appellee had failed to furnish and deliver, as agreed upon, blank forms of applications for loans, without which he was unable to make loans as desired, and whereby he was prevented from making certain loans, also specified in the petition; and that finally appellee wholly breached the contract by refusing to make loans, etc. There are numerous other allegations in the petition, but we think what we have stated will be sufficient for an understanding of our disposition of the case. The defendant answered by general and special exceptions and a general denial, and the cause was submitted to a jury upon special issues. Upon the verdict as returned, judgment was entered for appellee. Hence this appeal.

The court submitted but two special issues, the first of which, in substance, was whether certain loans specified in the plaintiff’s petition, and which the plaintiff alleged had been accepted, by the defendant, had been lost by.the negligence or unnecessary delay of the defendant in closing up the loans. To this the jury answered, in substance, that none of such loans had been so lost. The second issue was whether certain other loans specified in the plaintiff’s petition had been lost because of the defendant’s failure to inspect them, as alleged. The verdict was for the defendant on this issue also.

The sufficiency of the evidence to support the verdict of the jury in the respects noted is not questioned by any assignment of error, and we need not, therefore, further notice the allegations of the petition or the evidence in the case relating to these issues.

Appellant first urges error in the action of the court in refusing the following special charge:

“Gentlemen of the jury, if you believe by a preponderance of the evidence in this cause that the plaintiff and defendant entered into a contract as alleged by plaintiff, by the terms of which defendant employed plaintiff as its loan agent at Abilene, Tex., with the following territory in which to operate and carry on said loan business, to wit: Counties of Taylor, Callahan, Msher, Nolan, and the south half of Jones, and the north half of Runnels counties, in the state of Texas, and if you further believe that defendant represented to plaintiff at the time that it had to loan, and would loan out, .$8,500,000 in 54 counties in Texas, and that said above 5 counties were the best, and above the average of said 54 counties, and that the defendant contracted with plaintiff that he shonld have his proportionate part of said $8,500','000 to be loaned in said 5 counties; if you so believe and find, then you will answer the following- questions:
“No. 1. Was said contract breached? Ans.
“No. 2. What amount of money allotted to plaintiff remained unloaned at the time of the breach, if any? Ans.•
_ “No. 3. Was it reasonably probable that plaintiff could and would have loaned out the remaining portion of the money so allotted to him remaining unloaned within a reasonable length of time? Ans.”

We are of opinion that the assignment must be overruled. Among other things, it will he noted that the charge embraces three distinct and separate issues, and that the first comprehends all of the numerous violations of the contract alleged, and calls for an answer to a question of law rather than of fact. The third is on the weight of the evidence in assuming that any part of the moneys alleged to have been set apart for the purpose by appellee had been “allotted to the plaintiff. The defendant denied, and supported the denial with specific testimony, that any sum had been allotted to the plaintiff, as alleged. The second issue embodied in the special charge is wholly immaterial in, the absence of a specific finding that the appellee had agreed to allot to appellant a specified sum of money to loan.

Appellant’s second assignment is as follows: .

“Because the court erred in excluding the testimony of E. B. Bynum wherein said Bynum would have testified that there was a keen demand for money in the territory allotted to appellant by appellee during the time that appellant was soliciting loans and at the present time and at all times intermediate, and that appellant could, with reasonable effort, have loaned out $890,000 within a reasonable time upon the terms and conditions required by appellee on good lands coming to the average with what the appellee had heretofore' accepted, all of which was duly excepted to by appellant as shown by his bill of exception Ño. 1 (being the fourth ground in plaintiff’s motion for a new trial. Tr. 37)-”

The evidence of the witness Bynum, as shown in the bill of exception taken at the time, is to the effect that the demand for loans of money in the territory assigned to the plaintiff during the period covered by his action was “keen,” and that he, the witness, who was also engaged in the loan business, was unable to supply the demand during said time. It will be thus seen that the assignment is not supported by the bill of exception. The evidence of the witness may tend to show that the appellant could, with reasonable effort, have loaned out the amount of money specified in the assignment, but it wholly fails to support the conclusion, that such sum could have been so loaned upon the “terms and condition required by appellee on good lands coming to the average with what the appellee had theretofore accepted.” Moreover, no- issue to this effect was given by the court or requested by appellant; and, in the absence of a finding to the effect that such sum could have been loaned with reasonable effort and within reasonable time upon good lands, of good- title, and filling the other terms and ‘ conditions required by appellee, the fact that there was a keen demand for money in the territory, and that the witness was unable on his part to supply such a demand, is immaterial. In other words, if it be admitted as established that there was a large demand for money at 'the time, it would be necessary for appellant to further show, before he would be entitled to recover commission upon loans not made, that he could have so made loans upon the very terms and conditions required by the appellee and assented to by appellant. We are therefore of the opinion that no reversible error can be predicated upon the second assignment.

We find no error in the court’s charge, as urged in the third assignment. The particular in which the charge is vague is not pointed out, nor is it apparent, and if deficient in omitting to define plaintiff’s duties as agent, the deficiency should have been supplied by an appropriate charge requested, and this was not done. Nor is there room for a contention under the evidence that the defendant was bound to accept an application for a loan unaccompanied by an abstract- of title, and the mere fact that it was not specifically alleged that it was plaintiff’s duty to so furnish abstracts does not render the charge erroneous in imposing such duty. This was part of the plaintiff’s case covered by the general denial.

The fourth and last assignment is sufficiently disposed of by what we have already said.

We conclude that all assignments of error must be overruled, and the judgment affirmed.
      <@=>For other cases seb same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    DEAN v. DEAN.
    (No. 5754.)
    (Court of Civil Appeals of Texas. Austin.
    May 30, 1917.
    Rehearing Denied June 27, 1917.)
    1. Deeds <&wkey;78 — Fraud.
    In suit by a daughter against her father to set aside her deed, case held for the jury under the evidence, though the evidence tending to support the allegations of deceit and fraud was rather meager and given by plaintiff alone, who, on cross-examination, made statements tending to weaken the force of her testimony.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 648.]
    2. Total <&wkey;140(2) — Credibility of Witness —Question foe Just.
    The credibility of plaintiff as a witness and the weight to he given her testimony are for the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 335.]
    Appeal from District Court, McLennan County; E. J. Clark, Judge.
    Suit by Edna Dean against Charles Dean. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Williams & Williams, of Waco, for appellant. Stribling & Strib-ling, of Waco, for ap-. pellee.
   KEY, C. J.

Appellant brought this suit against appellee, who is her father, and sought to have a deed executed by her set aside, and to recover the property conveyed to appellee by the deed. If the material allegations contained in her petition are true, appellant is entitled to the relief sought.

As the trial court instructed a verdict for the defendant, it is not necessary to state the particulars of the answer filed by him, further than to say that it contained, among other things, a plea of not guilty, a general denial, and a special answer containing aver-ments which, if true, will defeat the plaintiff’s alleged right of action.

After the plaintiff closed her testimony, the court granted, the .defendant’s request and •instructed a verdict for him, and that ruling and action is assigned as error and constitutes appellant’s ground for asking a reversal of the case.

We have carefully considered the testimony contained in the statement of facts in connection with the able briefs and arguments presented by counsel for the respective parties, and have reached the conclusion that the court committed material and substantial error when it denied to appellant the right to have her case passed upon by a jury and instructed a verdict for appellee.

As the ease will be sent back for trial before a jury, and as tbe action of that body in deciding the questions which will be submitted to it should not be influenced by the opinion of this, or any other, court, we shall refrain from here entering upon a discussion of the testimony, and content ourselves with the mere statement that, in our opinion, there was sufficient evidence tending to sustain the material allegations in the plaintiff’s petition to entitle her to a jury trial upon those issues. It is true that the evidence tending to support the allegations of deceit and fraud was given by the plaintiff alone, and it may be conceded that it was rather meager, and that upon cross-examination she made statements tending to weaken the force of her testimony upon direct examination; but, under a long line of decisions in this state, it was the sole province of the jury to determine the credibility of the witness and weight to be given to her testimony.

The other questions presented in appellant’s brief have been considered and are decided against her.

For the error pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.
      <5caFor oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    STACY et al. v. RAYWOOD CANAL & MILLING CO.
    (No. 240.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 22, 1917.
    Rehearing Denied June 27, 1917.)
    1. Interest <&wkey;66 — Interest on Draft— Pleading.
    Plaintiff’s petition alleged that the several defendants individually became liable on their promise to pay plaintiff $481.71, -with 6 per cent, interest from a specified date, and for the sum of $5 protest fees on the draft in suit, and prayed for judgment against defendants for plaintiff’s debt, damages, and costs, and such other and further relief as plaintiff might be entitled to either in law or in equity. Held, that the petition and prayer afforded sufficient basis for a verdict for plaintiff for the principal sum and interest from the due date of the draft until the date of judgment.
    [Ed. Note. — Por other cases, see Interest, Cent. Dig. § 147.]
    2. Compromise and Settlement t&wkey;19(2)— Estoppel to Ask Cancellation of Instrument.
    Whore plaintiff secured $160 on the faith of a compromise release, for which he gave a draft, and then stopped payment on it, he, without offering to return the $160, but keeping it, and pleading limitation against every item of the original contract, could not ask for cancellation of the draft in a court of equity, and be heard to complain that there was failure of consideration in that one of the items of the account compromised was unfounded, without offering to do what was equitable.
    [Ed. Note. — Por other cases, see Compromise and Settlement, Cent. Dig. §§ 71-73.]
    3. Bills and Notes <&wkey;537(l) — Action—ISSUER-SUFFICIENCY OF EVIDENCE.
    In suit on a draft, evidence held insufficient to raise issue as to whether a firm, one of defendants, was liable on the draft or claim sued for.
    [Ed, Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1862, 1871-1875, 1891-1893.]
    Appeal from Harris County Court; C. C. Wren, Judge.
    Suit by the Raywood Canal & Milling Company against William Stacy and others. Prom a judgment for plaintiff, defendants appeal.
    Affirmed.
    Stevens & Stevens, of Houston, for appellants. Woods, King & John, of Houston, for appellee.
   BROOKE, J.

Appellee, Raywood Canal & Milling Company, declared on a draft given by William Stacy & Son in the sum of $431.71, alleging that said draft was given appellee in payment of a settlement made between appel-lee and William Stacy & Son, whereby, after the making of mutual concessions, there was had an accord and satisfaction, and by way of compromise it was mutually agreed that there should be due from William Stacy & Son to appellee the sum mentioned, appellee’s books showing due said appellee from William Stacy & Son a much larger sum of money.

The reply of appellants to appellee’s petition was: First, a general denial; second, a plea of the statutes of two and four years’ limitation ; and, third, as follows:

“Further answering, this defendant says that there was no consideration for the debt declared upon, in that while there were certain transactions between the plaintiff and the defendant William Stacy arising out of the water rent for certain premises cultivated by tenants of the said William Stacy, and at the time of the execution of said draft declared upon in the sum of $431.71 it was understood by C. E. Stacy that certain tenants of said William Stacy had cultivated certain lands in rice at the instance of the said William Stacy, which were watered by the plaintiff, and that the defendant Wm. Stacy therefore owed the water rent for the same, but that as a matter of fact said tenants had not cultivated the land which had been so watered for the said William Stacy, but were in fact the tenants of one John Evans, and that the water rent was not due from the said William Stacy or the said William Stacy & Son, but that, owing to a mistake and misunderstanding as to the facts, the said William Stacy & Son, by C. E. Stacy, through inadvertence signed said draft, but that the same was not signed by Wm. Stacy, or by his authority, and that said partnership of Stacy & Sons had no connection whatever with the matters in dispute, that there was no consideration for said draft at the time of its execution moving from the plaintiff to the said William Stacy & Son, or to William Stacy, and that there was a total want and total failure of consideration for the same, since neither the said William Stacy nor the said William Stacy & Son owed the plaintiff the said sum for which said draft was executed, and this defendant denies that said William Stacy, or the said William Stacy & Son, at any time assumed the payment of any water rent for any tenants who received water from the plaintiff, other than upon the lands which were cultivated by tenants for the said defendants, and as to such water rent as was due for lands so cultivated for defendants, the same was paid long prior to the execution of said draft, and that the said draft declared upon was executed without consideration, as aforesaid, and it is denied that Wm. Stacy in whole or in part executed, or by the authority of said Wm. Stacy was the draft or check declared upon executed.”

It was agreed that Mrs. Hattie B. Stacy was independent executrix of the will of William Stacy, deceased, and sole devisee, and R. E. Brooks testified that the draft was given in payment of the amount agreed to be due, after a compromise and settlement of disputed accounts. It was admitted that the draft was not paid, and that there was a $5 protest fee thereon. It might be well to here set out In part the testimony of C. E. Stacy as a witness for himgelf and the other defendants, as follows:

“The account attached to the petition is not stated correctly. The account is a little different in our accounts from what you have it there it was at the time. That account states the settlement correctly. I got $477.86 from the National Milling Company for rice belonging to the Raywood Canal & Milling Company two or three months before this came up. I didn’t have that money in my hands at the time I came up here. It had been paid to me. I hadn’t paid it to the Raywood Canal & Milling Company because they owed us; $431 was not the difference. The difference between this rice that you speak of that I sold and the John Brown rice and our store account shows a difference on your “books of $95, and our books showed $33. The way you have it there is correct, but you spoke about getting this money from the John Brown rice. Thei’e was a balance in this settlement of $245.16 due by Stacy & Son outside of the Stacy, Beavis & Reynolds matter. That’s right, I gave a check for it; $245.16 of the $31 was Wm. Stacy & Son’s matters entirely; there was that amount besides the Girourd. The Devoe and Girourd matter was a Wm. Stacy & Son matter. So that at the time we made this settlement there was a balance due by Stacy & Son on the above matters of $245.16. Of the draft that I gave you in settlement for $431.71, $245.16 of it was not matters that belonged to Wm. Stacy & Son altogether. I am looking at this other here. You have got $477.86 in there; that’s what that rice brought that was shipped of yours. That was Wm. Stacy & Son’s. Every item there was Wm. Stacy & Son’s, except this last item, the Evans and Reynolds and Reavis rice, there on the Evans land, wasn’t Wm. Stacy & Son’s at all. The item in there on the John Evans was not $186.55; it was two hundred and something. It is not credited with part of that. There’s $248.32 that wasn’t Wm. Stacy & Son’s. I don’t know there were any deliveries on that. This rice here, this settlement I made here of my father’s, I don’t know anything about. This $24S you said was rice from the Reavis and Reynolds off the Evans land.”
“The statement attached to the petition shows that the balance due by Stacy & Son on the above matters is $245.16, and that there was added to that a balance due for water rent by Stacy, Reynolds; and Reavis, as per statement, $186.55. All that $431.71, except the $186.55, was not Wm. Stacy & Son’s. That’s the way you got it here. That off the Evans land wasn’t Y/m. Stacy & Son’s. You haven’t got that in here as I can see. I don’t know what you charged in this, settlement. I know there was two hundred and forty some odd dollars that you said was off the Evans land. Right there it shows a balance due by Stacy & Son of $245.16, and further shows a balance due for water rent by Stacy, Reynolds, and Reavis of $186.55, and the two items added together make $431.71. That’s the amount I have the draft for. You have it there showing that the entire matters covered by the draft I gave was Wm. Stacy & Son’s, except $186.55, but it amounted to more than that off the Evans land. You have taken some of this out of the account above here. The rice off the Evans land you have got charged up $244 and something. I was authorized to run the business of Wm. Stacy & Son and had been running it for several years. So far as Wm. Stacy & Son were concerned, I was fully authorized to act for them, and I acted for them. I have been acting for them all the time. I did not have any secret agreement that I wasn’t authorized to act for Wm. Stacy & Son. I knew that that was the Evans land that this charge for water rent was made for. It shows that right on the face of the receipt. I was the man that insisted on having receipts for these different amounts showing settlement of them. And this amount was included in the draft of $431. This was one of the items that went in to make up that tract. By . getting this matter settled you got released to Wm. Stacy & Son the amount that had been tied up by the National Rice Milling Company for the De Yoe and Girourd rice. I expect that was tied up two or three months there, I think, wasn’t it? I say probably sixty days, somewhere about that; I won’t be positive exactly. Representing Wm. Stacy & Son, I saw fit to make this settlement. I made the settlement for the Evans land, too. After I made the settlement and got the money released from the National Rice Milling Company to Wm. Stacy & Son, I didn't turn down the check which had been given in settlement and which enabled me to get this money released. Wm. Stacy & Son turned it down. Wm. Stacy turned it down. He was representing Wm. Stacy & Son.
“The first item here on this account that’s attached to the plaintiff’s petition is $6.40. That’s correct. The items following that down to the item of March 3d, the debit of $6.75, all those items are correct. The credit items shown on the account above the amount $522.-74 is correct. The item here, to the amount due to cover proceeds, etc., from John Brown rice, is not in dispute between us. They authorized me to sell this rice. That is correct. That $150 item is the item now that he claims was more. Devoe’s item was more, but he put it in for $185. He and I are in accord on that; we put it in that way. This amount in pencil, $186.55, is the only item that he and I are not in accord about.
“I had in my mind all the time that this $248 would be coming out of the $431 and this $150. This here was one that he claims Girourd owed him balance on water rent. He owed him more than this, but he cut this down to $150, you see. That’s why I don’t remember right now; it isn’t clear to me just where I get the receipt for $248.”

The account attached to the petition referred to, reads as follows:

Exhibit A.
wm. Stacy & Son, in Account with Raywood Cana] & M. Co.
1907. Dr. Cr.
Aug. 13 To Mdse . $ 6 40
16 “ 1 40
20 “ 19 80
23 “ 39 30
“ 13 20
“ 13 20
25 “ 6 60
Oct. 10 “ 4 00
Nov. 1 “ . 2 40
Dec. 12 To cash a/c storage. 15 45
5 To Mdse .:. 20
1908.
Mar. 3 To stge. 42 sx. 3 mos. at 18') 7 56
To stge. 27 sx. 2 mos. at 14) 3 78
To hauling 27 sx. at 25). 6 75
Aug. 13 By 2 bull chains, 3 canvassers and frt. 16 70
Dec. 2 By commission on binder.... 95 00
1908.
Jan. 31 By sundry bills oí Stacy.... 187 35
Mar. 2 By proceeds sale 69 sx. rice;
11,150 lbs. at $3.25. 223 69
Balance . 382 70
$522 74 $522 74
By balance due Stacy & Son on this a/c. $382.70
To amount due to cover proceeds realized from sale of John Brown rice to National Rice Milling Company, which was shipped to National Rice Milling Company, and proceeds being held by them pending settlement, as follows:. 477 86
To 92 sx. Japan 10,070 lbs. at $3.50.... $368 70
To 33 sx. Hond. 5,890 lbs. at $3.00. 109 07
$477 86
To balance due by De Voe & Girourd, that is, amount agreed to accept in settlement as per letter to Stacy & Son, dated 9/23/08. 150 00
To balance . 245 16
$627 86 $627 86
To balance due by Stacy & Son on above matters .. 245 16
To balance due for water rent by Stacy, Reynolds & Reavis per statement . 186 55
Total balance .$431.71.

Tlie case was tried before a jury, and 'the court peremptorily instructed a verdict in favor of plaintiff against the defendants William Stacy & Son, as a partnership, and against Hattie E. Stacy, as independent executrix of the estate of William Stacey, deceased, and against O. E. Stacy for the amount sued for, with 6 per cent, interest from January 28, 1909. The jury returned a verdict in response to said peremptory instruction, and judgment was entered in favor of plaintiff in the sum of $570.90. A motion for new trial was overruled, and the case was properly brought before this court for adjudication.

The first assignment of error is as follows:

“Because the court erred in directing the jury to return a verdict in favor of the plaintiffs for the amount of $431.71,. together with 6 per cent, interest from tlie '28th day of January, 1909, for the reason that the pleadings of the plaintiff did not seek to recover interest, said interest was not in controversy, and there was no allegation in plaintiff’s petition that it was entitled to recover any interest at all,, and no judgment was prayed for in said petition for interest on said $431.71, hence the court erred in so instructing the jury, and the :ury erred in returning a verdict for $431.71, together with 6 per cent, interest from the 28th day of January, 1909.”

Section YII of plaintiff’s first amended original petition reads as follows:

“That by reason of the premises the said Wm. Stacy & Son and Wm. Stacy and O. E. Stacy, individually, became liable to and promised to pay this plaintiff $431.71, with 6 per cent, interest thereon from January 28, 1909, until paid, and for the sum of $5 protest fees on said draft.”

Tlie said petition concludes as follows:

“Plaintiff therefore prays, in addition to the prayer for citations contained in the original petition, that citation issue as the law in such cases requires requiring the defendant Mrs. Hattie Stacy, as independent executrix of Wm. Stacy, deceased, be cited to answer this petition, and that upon final trial it have its judgment against said defendants O. E. Stacy and against the said Mrs. Hattie Stacy, as independent executrix of the estate of Wm. Stacy, deceased, for its debt, damages, and costs, and such other and further relief as it may be entitled to, either in law or equity, and will ever pray.”

Therefore we have a petition which declares on a written contract ascertaining the amount payable, and which alleges the liability of the defendant to pay the principal sum with 6 per, cent, interest thereon from January 28, 1909, the date of the instrument, until paid, and in addition prays for general relief. Without going into detail, it will be sufficient to say that, in our judgment, the petition and prayer affords a sufficient basis for a verdict in favor of plaintiff for the principal sum, .and interest thereon from its due date until the date of judgment. See I. & G. N. Ry. Co. v. Perkins, 184 S. W. 725. The assignment is overruled.

Appellant complains in his second assignment of error that the court erred in its action, for the reason that:

“The undisputed evidence having shown that the major part of the matters in controversy consisted of a claim that William Stacy, deceased, one of the partners of William Stacy & Son, was individually liable for certain rice received from the Evans farm, or from the tenants of said Evans, to wit, Reynolds and Reavis, the value of which amounted to approximately $248, and that this matter was not a part of nor connected with the affairs of said William Stacy & Son, being the individual matter of the said William Stacy, deceased, and the plaintiff, and the evidence having further shown that O. E. Stacy, one of the partners of the firm of William Stacy & Son, had no authority from his partner, William Stacy, deceased, to pay the claim for said rice from said Evans farm, nor to execute the draft or check in controversy in the name of William Stacy & Son so as to in any manner bind the. said William Stacy either individually or as partner, and the evidence having further shown that the alleged indebtedness, or claimed indebtedness, for which said draft or check was executed, covered approximately a claim of $248 by the.said plaintiff against the said William Stacy individually, and that neither said firm nor William Stacy owed said amount, hence the court erred in directing the jury to return a verdict in behalf of the plaintiff for the amount of said draft, since the undisputed evidence showed that said draft was unauthorized by the said William Stacy, and that the part of said draft which was intended to cover the said alleged Evans rice or rice from the farm of said Evans had not been received by said firm or by said William Stacy, and was not a- partnership matter of said William Stacy <& Son, and was outside of the scope of the said partnership business of said William Stacy & Son.”

The testimony of the surviving partner has in a large measure been set out heretofore, and this, together with the admitted fact that the draft declared on by plaintiff was duly executed and delivered to appellee, and that payment was stopped and the draft protested, amd no defense being set up in the pleadings, or by the proof, save as above set out and C. E. Stacy admitting each and every item in the statement heretofore set out as to matters in issue between appellee and William Stacy & Son, except the $150 item designated in said statement, “to balance due by De Voe & Girourd, * * * $150.00,” and said O. E. Stacy having admitted in his testimony that there was a dispute between himself and the Raywood Canal & Milling Company as to the amount of some of the various items, and that a compromise agreement was reached whereby the parties fixed on the said statement as showing the correct amount due, and that he thereupon gave his draft for this sum, $431.71, and at that time received a release to him of some money that was being held up by the National Rice Milling Company, on which appellee asserted a claim, and that he got this money on the faith of this compromise release, and then stopped payment on the draft, we do not believe, the testimony having been as above set out of the said C. E-. Stacy, he not offering to return the $150, but kept the same, and pleaded limitation against each and every item of the original contract, that he cam ask for a cancellation of the instrument in a court of equity, and be heard to complain, without offering to do what is equitable and right. Therefore, even granting that there was a plea of failure of consideration, which was good upon its face, and that one of the items was unfounded, there was still a settlement of claims and counterclaims which would seem to dispose of the plea of failure of consideration. We therefore are of opinion that it was correct for the court to instruct a verdict in favor of appellee. The assignment is overruled.

The third and fourth assignments of error are as follows:

(a) “There being an issue in the case as to whether or not the said William Stacy & _Son or the said William Stacy, deceased, was liable upon the draft or claim sued upon, hence the court erred in not submitting said issue to the jury.”
(b) “The court erred in directing a verdict, for the reason that O. E. Stacy, as a member of the firm of William Stacy & Son, could not bind his copartner, William Stacy, by the execution of the draft or check declared upon without authority from his said partner, William Stacy, so to do, and the evidence in this case having shown an entire want of authority in the premises on the part of the said O. E. Stacy that there was no consideration for said draft or check, and that the same was executed without the knowledge and consent of the said William Stacy, hence the court erred in directing a verdict for the plaintiff and in not submitting the issue to the jury.”

We have gone over this record carefully, and we are of opinion that there was no error in the matters complained of, and that there was not sufficient evidence to raise an issue as to whether the said William Stacy & Son was liable upon the draft or claim sued for, and we do not believe that the record presents any error in the action of the lower court in the trial of this case which would authorize this court to reverse the cause.

Believing that the appellant has had a fair and impartial trial, and that his rights have been guarded, we are of opinion that the judgment of the lower court was right, and that it should be affirmed.

It is so ordered.
      @=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    DAVIDSON v. JONES, SULLIVAN & JONES.
    (No. 220.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 31. 1917.
    Rehearing Denied June 27, 1917.)
    L Justices of the Peace <@=>159(2) — Appeal —Paupek’s Affidavit— Sufficiency.
    An affidavit by one member only of plaintiff partnership, to the effect that they were unable to pay costs or give security therefor, was sufficient on appeal from justice to county court to entitle plaintiffs to prosecute the cause as upon pauper’s oath under the statute; there being no contest of such oath.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544. 551.]
    2. Affidavits <@=2 — Authority to Make.
    Any member of a partnership in this state has authority to make an affidavit for the firm in all matters and suits where required.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 5-15.]
    3. Appeal and Error <@=>1043(2) — Appeal —Error Cured by Decision.
    Refusal to sustain defendant’s motion to dismiss plaintiffs’ appeal from decision of justice court for insufficiency of affidavit of. inability to pay cost, was harmless where plaintiffs recovered judgment which carried with it costs.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4116.]
    4. Justices of the Peace <@=>©1(3) — Pleading — Suit by Partnership — Statement of Partners’ Names.
    In justice court, where the account sued on, as well as the complaint, referred to the contract of loase, which gave the names of the partners, the pleadings were sufficient, although the members were not named therein.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 310, 316.]
    5. Trial <@=>251(2) — Instructions—Applicability to Issues.
    In an action by partnership lessees to recover damages for eviction by lessor, where defendant claimed that ail of the partners agreed to and did turn back the premises, the court did not err in submitting special issue whether all members voluntarily returned the premises, and not whether one did.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 589.]
    6. Appeal and Error <@=736 — Duplicitous and Multifarious Assignments.
    One assignment, attempting to challenge refusal to give several different special charges pertaining to different matters and contentions entirely unrelated, is both multifarious and duplicitous, and will not be considered.
    [Ed. Note. — For other cases, see Anneal and Error, Cent. Dig. §§ 3028, 3029.]
    7. Appeal and Error <@=742(1) — Defective Assignment — Compliance with Rules.
    Where an assignment is not followed by such a proposition of law as is required by the rules, and the statement thereunder is not as required, it will not be considered on appeal.
    [Ed. Note. — -For other cases, see Appeal and Error, Cent. Dig. § 3000.]
    8. Justices of the Peace <@=44(8) — Jurisdiction — Amount.
    Where the complaint prayed for actual damages less than $200, without any prayer for interest or general relief, the justice court had jurisdiction, though, had interest been claimed, jurisdiction would have been defeated.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 166.]
    Appeal from Nacogdoches County Court; John F. Perritte, Judge.
    Suit in justice court by Jones, Sullivan & Jones, a partnership, against John P. Davidson. There was judgment for defendant, and plaintiffs appealed to the county court, where they prevailed, whereupon defendant appeals. Affirmed,.
    C. A. Hodges, of Nacogdoches, for appellant. S. M. Adams, of Nacogdoches, for ap-pellees.
   HIGHTOWER, C. J.

This suit was filed- by appellees, Jones, Sullivan & Jones, a partnership composed of Mary E. Jones, E. P. Sullivan, and T. E. Jones, in one of the justice’s courts of Nacogdoches county, against John ' P. Davidson, wherein appellees sought to recover a money judgment against appellant for the sum of $399.99, as actual damages. The record discloses that on the 12th day of January, 1910, appellant, by written contract of that date, leased and rented to the partnership of Jones, Sullivan & Jones, for a period of three years from, that date, the lower story of a certain brick building in the town of Nacogdoches, owned by appellant, and which had theretofore been used as a re&-taurant, this portion of the 'building consisting of several rooms. The consideration for this lease, as specified in the contract, was $60 per month, to he paid monthly in advance for the entire period of three years. The record further shows that appellees paid the rent under this contract up to March 12, 1916, there being a receipt in the record from appellant to appellees showing that fact. At the time this written contract of lease was executed, said partnership also purchased of appellant the restaurant furniture, cooking utensils, etc., and all of the groceries then on hand in said restaurant, and paid appellant therefor. It was the intention of this partnership to nse and occupy this building, and carry on the business of a restaurant, which it commenced to do immediately upon taking possession. Appellees, in. their complaint in the justice court, alleged that appellant, about the last of February, 1916, over the protest and objection of appellees, and in violation of his contract of lease, entered upon said leased premises, and forcibly took possession ■of same, and refused to permit appellees to longer occupy said leaséd premises, therefore breaching his contract with appellees, to their damage in the sum of $61.53, and ap-pellees’ complaint further alleged that at the same time appellant forcibly took and converted certain articles of personal property then owned by them, and situate in said restaurant, which, at the time of such conversion was of the value of $138.46, to the damage of appellees in said amount, which two amounts aggregate $199.99. Appellant’s answer, as best we can gather from the transcript, consisted of exceptions and plea to the jurisdiction of the justice’s court to entertain ap-pellees’ suit, on the ground that the aggregate amount sued for by appellees was in excess of the jurisdiction of said court, and, further, by general denial, and also a special plea to the effect that appellees voluntarily turned back said leased premises to appellant, and the personal property therein claimed by appellees, in consideration for appellant’s releasing appellees from further liability under said lease contract. Upon trial in the justice’s court, without a jury, the court rendered judgment in favor of appellant. Appellees, in proper time, carried the case by appeal to the county court of Nacogdoches county, and upon trial in the last-named court, which was with a jury, verdict and judgment were rendered in favor of appellees for the sum of $100, with legal interest on that amount fro-m date of judgment, and appellant, in proper manner, has brought the ease, by appeal, to this court

It seems that when the case reached the county court, appellant ruled appellees for costs, and in response Mary E. Jones, one of the members of the partnership, filed a pauper’s oath, in which she stated that she and E. F. Sullivan and T. E. Jones, composing said partnership, were unable to pay the costs of court, or to- give security therefor. But there was no affidavit made by either of the other members of the firm, and therefore appellant contends that since neither of the other members of the firm filed an affidavit of inability to pay costs or give security therefor, the court erred in not sustaining his motion to dismiss the ease, which motion appellant duly made, and which the court overruled. The proposition under this assignment is as follows:

“When the defendant is required to give a bond to secure costs, and it appears from the pleadings that defendants consist of several persons, affidavit should be made by each of the defendants.”

In disposing of this assignment, we might say that the court might ignore it altogether, for the reason that the proposition thereunder is in no manner germane to the assignment; appellees were not defendants below, but were plaintiffs, and the proposition of law under this assignment is that defendants in a suit, when required to give a cost bond, and claimed inability to do so, each of such defendants should make an affidavit to that effect. We might dispose of this assignment by saying that we know of no rule of law that requires defendants in any court to give a cost bond, or to make affidavit of inability to pay costs. We presume that appellant means by this proposition that appellees should have each filed an affidavit of their inability to pay the costs, or to give security therefor.

If, in any case where several persons sue jointly as plaintiffs, each one can be required to make affidavit for himself of inability to pay costs or give security therefor, and an affidavit made by one of the plaintiffs in such a case for all of them would not be sufficient, still, we think that in this case, where the plaintiffs constitute a partnership, and sue as such, an affidavit by either of the members of the firm, to the effect that they are unable to pay the costs or give security therefor, is sufficient to entitle such plaintiffs to prosecute the cause as upon pauper’s oath under the statute; there being no contest of such oath.

We understand it to be the law that any member of a partnership in thi,s state can make an affidavit for Hie- firm in all matters and suits where an affidavit is required, and that is, in effect, what was done in this case. There seems to have been no contest made by appellant of the affidavit made by Mary E. Jones.

If, however, we should be mistaken in this view, still we say that the action of the court in refusing to sustain appellant’s motion to dismiss for the want of proper affidavit of inability to pay costs or give security therefor by each of the members of said partnership, still such error on the part of the court was harmless, and has not resulted in any injury to appellant, for the reason that appellees recovered a judgment against appellant, which carried with it a judgment for costs in their favor. The assignment is overruled.

The second assignment is to the effect that the court erred in refusing to sustain appellant’s motion and exception to dismiss the suit, because the individual names of the persons composing the partnership of Jones, Sullivan & Jones, plaintiffs below, were not stated in the complaint of appellees, nor in the citation issued on such complaint. Such a motion was made by appellant below, both in the justice’s court and in the county court, and was overruled in both instances.

The proposition under this assignment is that the individual names of partners must be stated in the pleadings. Since this suit was commenced in a justice’s court, the strict rules of pleading required in courts of record were not applicable, and it was not required that the complaint of appellees in the justice’s court should be as specific in all particulars as would be required in a pleading filed in the county or district court. We notice, however, from the transcript that the account sued on by appellees in the justice’s court refers to and specifically mentions the written contract of lease executed by appellant, the breach of which was claimed by appellees, and upon inspection of this contract, we find that the individual names of each of the members composing the partnership of Jones, Sullivan & Jones appear in said contract. This contract, therefore, having been- specifically referred to in the complaint and cause of action filed by appellees in the justice’s court, became a part thereof, and, in fact, the original contract was filed along with the account sued on, and' was entirely sufficient to give appellant notice as to who constituted the partnership of Jones, Sullivan & Jones. There is nothing in this assignment, and it is overruled. Railway Co. v. Philips, 63 Tex. 590; Vernon’s Sayles’ Texas Civil Statutes, art. 2326; Rector v. Rice Milling Co., 100 Tex. 591, 162 S. W. 402. Many other authorities might be cited, from which it would appear that the contention of appellant as to this assignment is not tenable.

The ease' was submitted to the jury on special issues, which, together with the answers of the jury thereto, were as follows:

“.Special Issue No. 1: Did Jones, Sullivan & Jones voluntarily return the restaurant and fixtures back to John P. Davidson? Jury answered, No.
“If you answer, Yes, you need not answer the following issues:
“Special Issue No. 2: Were Jones, Sullivan & Jones damaged by the taking of the restaurant and fixtures back by John P. Davidson? Jury answered, Yes.
“If you answer, Yes, you will answer special issue No. 3.
“Special Issue No. 3: How much was Jones, ■Sullivan & Jones damaged? You will answer in dollars and cents. Jury answered, $100.00.”

Appellant’s third assignment of error is ¿s follows:

“The court erred in its charge in special issue No. 1 submitted to the jury, as to whether or not plaintiff voluntarily surrendered said property to the defendant, but should have charged the jury that if the plaintiff, or either one of the plaintiffs, turned over said property to the defendant, then in which event, the jury should have been instructed to answer special issue No. 1, Yes, as is shown by defendant's special charge No. 1 and bill of exceptions No. 1, herewith presented and made a part hereof, and also which special charge thus presented to the court is now referred to and made a part hereof.”

It is true, as pointed out by appellant, that the court in its charge to the jury did not tell the jury that if either of the members of the partnership composed of Jones, Sullivan & Jones voluntarily surrendered and turned back the premises in question to appellant, such action on the part of such member would be binding on the firm, and that the appellant would not be liable as for the breach of the contract set up by appel-lees, and we are not sure that it would have been proper for the court to have so instructed the jury, for the ’reason that we are not prepared to concede that any one member of the firm of Jones, Sullivan & Jones had the’ authority to so wind up their partnership business, and release appellant from his contract, especially without the consent of at least one of the other members of said firm, and there is nothing in the record to show that any one member of said firm was so authorized by any other member of the firm.' But aside from this, we think that the charge of the court, as given, followed the theory and claim of appellant on this issue, both in his pleadings and as to the evidence introduced by him. It is clear from the record before us that appellant claimed, in the lower court, that all the members of this partnership expressly agreed and did turn back to appellant the premises in question, in consideration of the firm being released from the contract with appellant, and the evidence introduced by appellant is to the effect that all the members so agreed. It is nowhere claimed by appellant that one of the members of Jones, Sullivan & Jones acted for the others, or purporting to act for the others, turned back the premises to appellant, and therefore we think that the charge of the court, as given, in following the contention of appellant, both according to his pleadings and his evidence, was correct, and that there was nothing calling for an instruction to the effect that the consent of one of the members acting for the others, would be sufficient to protect appellant against tlie claim of breach of contract. In view of appellant’s pleadings and his evidence on this point, it is but reasonable to presume that if the jury believed that any member of the firm consented to return the premises to appellant, then all of them did; but the jury found, in effect, following the plea and the evidence of appellant, that none of said members so agreed to turn back to appellant said premises. We think that there was no error, under the circumstances, committed by the trial court, as claimed in this assignment.

Appellant’s fourth assignment is as follows :

“The court erred in not giving- the defendant’s special charges Nos. 1, 2, 8, and 4, hereto attached and made a part hereof.”

The proposition under this assignment is:

“The special charges hereinafter referred to will have to be read in connection herewith. The issues presented by said special charges wore raised by the testimony, and any disputed question of fact should be submitted to the jury. This proposition is asked to be considered in connection with the assignment and the special charg'es, in view of the testimony hereinafter quoted.”

The statement following this proposition under this assignment is as follows:

“Special Charge No. 1: ‘There having been no parties plaintiff in the court below in this cause, you are charged to find for the defendant.’
“Special Charge No. 2: ‘You are instructed, in answering special issue No. 1 presented in the court’s charge, that if you find that either member of the firm voluntarily turned said property over to the defendant, then you should answer special issue No. 1, Yes.’ '
“For additional statement, see testimony already quoted under assignment No. 3, where, in substance, appellant’s witnesses testified ap-pellees voluntarily surrendered the promises.
- “Special issues were reserved for the court’s refusing to give these charges.”

Thus, it will be readily seen that under this one assignment, the action of the trial court is attempted to be challenged be'cause of its refusal to give several different special charges pertaining to several different matters and contentions, and entirely unrelated to each other, and therefore the assignment is both duplicitous and multifarious, and under the rules cannot be considered, and, besides, such assignment is not followed by such a proposition of law as is required by the rules, nor is the statement thereunder such as is required, and the same will not therefore be considered.

The fifth assignment is:

“The court should have dismissed this suit for the want of jurisdiction; the amount sued for being in excess of the court below. Hence the court has no jurisdiction.”

The proposition under this assignment is:

“If suit is for damages $199.99, then, as a matter of law, interest is due from the date of damage and becomes a part of the principal, and in which event would total more than $200, and beyond the jurisdiction of justice court. The justice court would not have jurisdiction where the amount exceeds $200.”

Notwithstanding the condition of this assignment and the proposition thereunder, we have considered it, and the same is overruled, for the reason that the amount sued for, as shown by the account or complaint filed in the justice court by appellees, was for actual damages in the aggregate sum of $199.99, a part of which was claimed for breach of the contract hereinbefore mentioned, and the balance for conversion of personal property, as hereinbefore explained, and nowhere in the complaint was interest prayed for by appel-lees, on either item, and therefore the amount claimed by appellees and put in controversy in the justice court below was not in excess of $200, as claimed by appellant, and therefore not in excess of the jurisdiction of the justice court. Appellant’s contention, to the effect that interest was recoverable as a matter of law on the amount thus claimed by appellees in the justice court, is not correct, though it may be conceded that had appellees prayed for interest in the justice court below, upon the amount claimed as damages, the court might have been authorized to allow interest, and had such been the situation, it may be that the amount so claimed by ap-pellees would have been in excess of the jurisdiction of the justice court. Appellant cites as an authority for his contention that the amount claimed was in excess of the jurisdiction of the justice court the case of Railway Co. v. Perkins, 184 S. W. 725. We have examined this authority, and hold that it has no application here. It was held by the court in that case that where the plaintiff claimed interest, which, added to the principal amount sued for, would be in excess of the jurisdiction of the justice court, then the justice court had no jurisdiction, and, of course, the county court would have no jurisdiction on appeal of the case to that court, and the court further held in that case that a prayer for general relief would be sufficient to authorize a recovery of interest, and therefore that interest was, in fact, sued for in that case, and the amount claimed was therefore in controversy of the jurisdiction of the justice court. In this case, however, there was not even a prayer for general relief. But all that was claimed was $199.99. as actual damages. The authorities which are cited by the court rendering the otfinion in Railway Oo. v. Perkins, supra, clearly support the conclusion we have reached on this point. The assignment is overruled.

Failing to find any error in the judgment complained of, we conclude that the same should, in all respects, be affirmed; and it is so ordered.
      <©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    O’LEARY v. ST. PAUL FIRE & MARINE INS. CO.
    (No. 229.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 30, 1917.
    Rehearing Denied June 27, 1917.)
    1. Insurance <S=»4-24r-Automobile Insurance — “Collision . ”
    Under a policy insuring an automobile against collision with any other vehicle or object, excluding striking of roadbed, rails, ties, etc., plaintiff could not recover for damage to his automobile caused by the second floor of the garage in which it was kept falling upon it, as it was not a “collision” with such an object as contemplated by the policy.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Collision.]
    2. Insurance <g=»146(3) — Policy—Construction.
    A policy of insurance will be construed most strongly against the company.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. § 295.]
    Appeal from Harris County Court; Murray B. Jones, Judge.
    Suit by D. L. O’Leary against the St. Paul Eire & Marine Insurance Company. Prom a judgment for defendant, plaintiff appeals.
    Affirmed.
    Woods, King & John, of Houston, for appellant. Elliott Cage, of Houston, for ap-pellee.
   BROOKE, J.

This was a suit brought by appellant against appellee on a policy of insurance, issued by appellee to appellant. The issues raised by the pleadings are broad enough to support the court’s findings of fact, in our opinion, and it is therefore unnecessary to enter into any statement of the contents of the pleadings. The court’s findings of fact, filed at request of appellant, read as follows:

“I find that on or about July 8, 1915, plaintiff and defendant entered into a contract, by tlie terms of which defendant insured an automobile belonging to the plaintiff in the sum of $750, the policy covering damage to the automobile and equipment in excess of $25 by being in collision, during the period insured, with any other automobile, vehicle or object, excluding: (1) damages or loss to tires- (unless the total damage caused by the collision to the automobile herein described exceeds the sum of $200); (2) damage caused by striking any portion of the roadbed or by striking the rails or ties of the street, steam, or electric railroads; (3) loss or damage while the automobile insured is being operated in any time or speed contest or while being operated by any person under the age of 16 or age limit by fire. The policy also covered damage by fire, and in consideration of a premium of $28.05 insured the plaintiff’s automobile for the term of one year from July 8, 1915.
“I find that plaintiff paid for said car the sum of $850.
“I find that on or about August 14, 1915, the car was in a collision and was damaged by said collision in the sum of $50, that the defendant settled with said plaintiff for said damage, but that the car had not been repaired at tlie time of the accident which forms the basis of this suit.
“I find that on or about August 16, 1915, while said car was in the garage of the McDade Automobile , Company for the purpose of being repaired, the building in which said automobile company’s garage was located collapsed, the second floor of the building falling upon the said automobile and damaging it; that the building was caused to collapse by a severe storm.
“I find that the damage to the automobile sued for in this case was caused by the second floor of the building falling upon said automobile, and that said automobile was damaged in the sum of $300, after deducting $25 as provided by the policy, and taking into consideration the deterioration caused by the use of the car.
“I find that no proofs of loss were furnished by plaintiff, but that defendant denied liability under the policy and has never paid the plaintiff for the damage to the car.”

Judgment was entered in favor of defendant in the court below. Appellant, in due season, filed motion for new trial, which was overruled, plaintiff excepting, and giving notice of appeal to this court, and the case is now properly before this court for adjudication.

Appellant’s first assignment is as follows:

“Because the court erred in rendering a judgment in favor of the defendant and against the plaintiff, the evidence indisputably showing that the automobile described in plaintiff’s petition, and belonging to the plaintiff, was in collision with an object such as is contemplated by the terms of the policy sued upon and was damaged because of such collision in the sum sued for.”

The proposition of appellant is as follows:

“The word ‘collision’ includes within its meaning — when it is used in a policy of insurance on a vehicle, which policy expressly provided that it shah not be considered a collision when, the vehicle is damaged by striking any portion of the roadbed, or the rails, or ties of street, steam, or electric railroads — the falling of any object upon the vehicle while the vehicle is stationary.”

On the other hand, it is contended that the alleged collision in which the automobile w.as damaged was not such as was contemplated by the terms of the policy.

We have read the clause of the policy carefully, and have arrived at the conclusion that the contention of appellant is not sound, and that this court would not be justified in holding that the alleged collision, in which the automobile was damaged, was such as was contemplated by the terms of the policy. The car was in a garage. The second floor of the building or garage falling upon the car caused the damage. Sui'ely it cannot be said that it was the intention of the parties, as ascertained from the terms of the policy, that the word “collision” was broad enough to cover such damage as occurred in the instant case, and that appellee would be called upon to pay a loss caused by the falling of a building upon the car while the car was being left in the same.

The case of Harris v. American Casualty Co., 83 N. J. Law, 641, 85 Atl. 194, 44 L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846, cited by appellant, was a case in which the automobile, while being operated, ran off the bridge, and struck the water and ground beneath. We are' of opinion that that ease is easily distinguished from the instant case.

The case of Newton Creek Towing Co. v. Ætna Ins. Co., 163 N. Y. 114, 57 N. E. 302, was a case in' which a boat was lashed to the side of a tugboat and forced through a heavy ice flow, thereby being injured. The. court held that, while the injury was undoubtedly caused by collision with the ice, still the injury was not within a contract for insurance against accident caused by collision.

We agree with appellant that a policy of insurance will be construed most strongly against the company. However, we do not believe that a forced construction and one clearly not within the intention of either party should be placed upon the language used in the policy. We do not believe, in the case at bar, that there was a “collision” within the ordinary meaning of that term, and we are of opinion that appellant should not be permitted to recover upon said policy in the instant case.

Without going into detail, and without extending this opinion further, it will be sufficient to say that, in our judgment, there is no merit in appellant’s assignment. The same is therefore overruled, and, as this court finds no error in the action of the lower court, its judgment is in all things affirmed.
      <S=»For other cases see same topic and KEY-NUMBER in all Key.-Numbered Digests and Indexes