author: TALBOT, J.

text:
    GENERES v. SECURITY LIFE INS. CO. OF AMERICA.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 10, 1914.)
    1.Evidence (§ 450) — Parol Evidence — Construction oe Contract — Existence oe Ambiguity.
    A contract between an insurance company and' an agent provided that the agent was to receive a specified salary, and, in addition thereto, commissions according to a certain scale, and that, at the end of a certain time, the company would add together the salary, commissions,' expenses, etc., and, if the total cost of the business was less than commissions according to a scale therein set out, the agent should receive the difference. An amendment to this contract provided, among other things, that the agent’s monthly drawing account should be increased to $350. Held, that the two contracts, when considered together, presented an ambiguity, in that in the first the agent’s compensation was designated a salary, and in the second an advance against commissions, thus rendering parol evidence admissible.
    [Ed. Note. — For other cases, see Evidence, Cent.' Dig. §§ 2066-2082, 2084; Dec. Dig. § 450.]
    2. Insurance (§ 84) — Agents — Compensation — Evidence—Sufficiency.
    In an action by an insurance agent against the company to recover upon agency contracts, evidence held to support a finding that it was the intention of the parties in the execution of the contracts that the agent should be allowed a monthly advance to be charged against his commissions to be earned under the contracts, and that the advances were not intended as a salary to be paid in addition to the commissions.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 111-114; Dec. Dig. § 84.]
    3. Insurance (§ 84) — Agent—Contract oe Employment — Construction by Parties.
    A contract between an insurance agent and the company provided that the agent was to receive a specified salary, and, in addition thereto, commissions computed according to a specified scale; that, at the end of a certain time, the company would add together the salary and commissions, and all expenses, and, if the cost of the business was less than a specified scale of commissions, the agent was to receive the difference. Both the agent and the' company treated the contract as though he were working under the larger scale of commissions, and treated the salary as a monthly advance against these commissions. Held, that the agent was estopped, after so construing the contract, and acquiescing in the same construction thereof by the company, to thereafter insist that he was working on a salary basis.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 111-114; Dee. Dig. § 84.]
    4. Insurance (§ 84) — Accounting by Agent —Sufficiency oe Evidence.
    In an action by an agent against an insurance company, evidence held to support a finding that notes received by the agent upon premiums, and sent to the company, were, with the agent’s knowledge, only received by the company as collateral to his account, and he was not entitled to commissions until the notes were paid.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 111-114; Dec. Dig. § 84.]
    5. Account Stated (§ 6) — Assent oe Parties.
    Where the secretary of an insurance company took from the books an itemized statement of the account with an agent, and the agent went carefully over it and pointed out two or three errors, which were accordingly corrected, and said that the account was otherwise correct, there was an account stated.
    [Ed. Note. — For other cases, see Account Stated, Cent. Dig. §§ 30-39; Dec. Dig. § 6.]
    6. Account Stated (§ 6) — Implied Consent —Estoppel—Grounds.
    Where an insurance agent knew that the company was making an advance to him on the belief that certain items of. dispute were settled by an account stated, the agent was estop-ped to thereafter insist that there was no account stated.
    [Ed. Note. — For other cases, see Account Stated, Cent. Dig. §§ 30-39; Dec. Dig. §6.]

      7.- Appeal and Error (§ 742) — Assignment op Error — Necessity of Statement.
    An assignment not followed by a sufficient statement of facts to enable the court to determine, without resort to the record, whether there ,was error in the ruling complained' of will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by L. M. Generes against the Security Life Insurance Company of America. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Love & Taylor and Royall R. Watkins, all of Dallas, for appellant. Bull & Johnson, of Chicago, Ill., and Allen & Flanary, of Dallas, for appellee.

      For other cases see same topic and'section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

Appellant brought this suit against the appellee to recover the sum of $6,606.76, alleged to be due upon life insurance agency contracts. Appellant prayed, also, for an accounting. The trial was had without a jury, and resulted in a judgment for appellee, and appellant appealed.

The first contract mentioned in appellant’s petition, which is dated March 16, 1909, and signed by the parties, after stating that it is the basis for contract between appellee and appellant covering such parts of the state of Texas as may be agreed upon from time to time, provides:

“The agent under this agreement is to have the title of supervisor, and will receive a salary of $250.00 per month and all necessary traveling expenses. The agent will be allowed the following schedules of first year’s commissions on personal business, and will be required to make contracts with his sub-agents on the basis of the schedule of commissions given below; he will also require from all of his agents that he assists one-half of their commissions for the assistance:

Kind of Policy. First-Year
Commission Percentage.
Economic Ordinary Life N. P.50
Economic 20-Payment Life N. P.50

“[Then follows 16 other kinds of policies and first-year commission percentage.]

“At the end of a certain time,' hereafter to be agreed upon, the company will add together the agent’s salary, all expenses and commissions paid' to agents, and amounts due by reason of canceled and undelivered business, and, if the total cost of his business thus computed on the various forms of policies is less than the following schedule of commissions, counting paid for business only, the difference, if any, shall be due and payable to. the agent:

Economic Life N. P.69
Economic 20-Payment Life N. F..;.77

“[Then follows 14 other kinds of policies and commission percentages.]

“The agent will be allowed the following collection fees, provided he remains in the service of the company:

Kind of Policy. Collection Pees No. of
Percentage. Tears.
Economic Ordinary Life N. P. .6 5
Economic 20-Payment Life N. P.6 6

“[Then follows 16 other kinds of policies, collection fees, percentages, and number of years.]

“The agent will be allowed to pay his sub-agents such collection fees under the above schedule of policies as he may agree with them, conditioned upon their remaining in the service of the company, and not greater than the fees contained in the regular printed contract. All settlements taken by the agent are to be sent to the company.”

On August 2, 1910, appellee wrote appellant as follows:

“Mr. L. M. Generes, Box 606, Dallas, Texas —Dear Sir: Referring to your contract with this company, I beg to state the company is willing:

“First. To increase your monthly drawing account, beginning August 1, 1910, to $350.00 per month.

“Second. To make you an allowance of $600.00, which is to be payment in full for the extra commissions requested by you on coinsured business prior to August 1, 1910, with the understanding that the same is to be charged to your account until the notes given on all of the coinsured business have been paid in full in cash to the company.

“Third. On all future coinsured business to allow you on the ordinary and 20-payment life policies a flat commission of 60 per cent., less taxes and board contract dividends, said commissioners to be credited to your account, and not to be paid to you in cash until the same have been received in cash by this company.

“Fourth. In the event of the company contracting direct with O. B. Storer, it is understood that you will waive any interest in any of the business produced by him under said contract.

“Fifth. With the understanding that you will use your best endeavors to turn in a satisfactory volume and quality of business as you have done heretofore until your second year is over, which, according to our understanding, is March 1,1911.

“All of the officers of the company join in wishing you health and prosperity. [Signed] Security Life Insurance Company of America, by J. B. Sells, Yice President.”

Appellant indorsed on said letter his acceptance of the terms here proposed, signed his name thereto, and returned the letter to appellee. On March 1, 1911, appellant and appellee entered into another contract, the terms of which, among others, are that appel-lee thereby' appoints appellant as its agent, with authority only of securing applications for insurance on the lives of individuals in the territory designated, appellant agreeing to comply with all instructions contained in appellee’s rate book, and which may be given him from time to time by the appellee; that appellant shall collect first-year premiums and such other premiums as he may be authorized to collect when furnished with the regular receipts of the appellee for such premiums ; that he shall remit promptly to ap-pellee all premiums when collected, such remittances to be made with the application when a cash settlement is taken at the time of writing same. In the event a cash settlement by the applicant is not made until delivery of the policy, then the net due the appellee shall be remitted in cash immediately. Notes taken by the agent in settlements, when taken at time of delivery of policy, may be retained by the appellant; but, in all cases when notes are taken, the net due the company shall be due and payable from the agent immediately upon said notes being discounted or sold by the appellant, and, if not so discounted or sold, the net due the company shall in all events be due and payable to appellee 60 days after such notes are taken by the agent. The appellee, in consideration of the services to be rendered by appellant while the contract is in force, agrees to pay appellant, on all business written by him, a commission upon the first year’s premium of each policy accepted and paid for in cash, and a renewal commission upon subsequent premiums when paid in cash in accordance with certain tables set forth in the contract. This contract further provides: “That its execution abrogates, terminates, and renders void all previous agency contracts made between said parties, and all claims to compensation by the agent under any previous agency contract are hereby waived and canceled except as to first year’s commissions, if any, that may now be due, or shall become due, the agent on business heretofore written. Provided that nothing herein contained shall be construed to affect or waive any claims of any kind, whether for money or otherwise, of the company against the agent under any previous agency contract; that, beginning March 1, 1911, the company agrees to advance said agent the sum of three hundred and fifty dollars ($350.00) per month and all necessary and actual traveling expenses. The same will be charged to his account. In consideration of these advances, said agent shall remit to the company full premiums collected on all business written until such advances and all other indebtedness due the company from the agent shall have been repaid by the amount of commissions to which said agent otherwise would have been entitled under clause (3) — A; that renewal commissions on business written by the agent prior to the date of this contract shall be allowed as per schedule in paragraph (3) — A, but any renewals on business written under prior contracts shall not be in the aggregate for a longer period than shown in (3) — A, and any renewals paid on same shall be considered as paid under this contract.”

This contract in duplicate was sent from appellee to appellant’s house in Dallas, and before signed by him appellant telegraphed appellee in Chicago, Ill., as follows: “Contracts received. Am I to interpret that business must be paid for in cash within sixty days or will company take notes as in the past? Will I be allowed to write four twenty-five thousand applications as agreed by Sells with commissions as in former contract on excess? Wire reply.” To this telegram, appellee replied by wire as follows: “Yes to both propositions except that notes must be taken for reasonable length of time.” The contention of the appellant is, in substance: That under said first contract he was to receive a salary of $250 per month, traveling expenses, and, in addition thereto, commissions on premiums for the first year, as provided in the first, or smaller, schedule of commissions, unless, at the end of a certain time to be agreed upon, the salary, expenses, commissions paid to agents, etc., added together, should total less than the commissions computed under the second, or greater, schedule of commissions, in which event the difference to be due and payable to the agent That the second schedule as a basis for computation of commissions was never in effect, in that the contingency upon which it was to become effective never occurred. That the appellant in either event was to rceive, in addition to salary and commissions, certain collection fees and subagent commissions. Appellee pleaded in defense specially: That its liability during appellant’s entire period of employment from March 16, 1909, until March 1, 1911, was fixed by the two contracts above mentioned, dated, respectively, March 16, 1909, and August 2, 1910, together with a third contract dated March 1, 1911. That there had been no final settlement between .appellant and appellee. That the $250 per month stipulated in said first contract as salary, and claimed by appellant as such, was not in reality a salary, but was an advance to be charged against appellant’s commission account accruing under the second, or greater, schedule of commissions set out in said first contract That appellant turned in to appellee for first-year premiums uncollected notes aggregating the sum of $9,847.76, and certain lien notes aggregating the sum of $944.84, and that appellant’s commissions were not earned under said contracts until the notes were paid. That, if all of said notes were collected, there would be due appellant the sum of $723.79. That said notes were accepted by appellee as a matter of protection, to be held by it for collection purposes, against advances on appellant’s account without creating any liability therefor to him until collected. That such was the understanding between the parties at the time of the execution of the several contracts, which meaning was intended to be incorporated in said contracts by the language therein employed; and, if the language fails' to express such meaning, it is due to mutual mistake of the parties, and that appellee is entitled to correction of the contracts, or, if the language of said contract is ambiguous, the meaning pleaded by defendant as above stated should be given the same, because of the intent of the parties, and because of the construction of the parties in accordance with such meaning, and in which construction appellee alleges the appellant acquiesced. Appellee pleads, also, two accountings and adjustments and an account stated with appellant; .the first accounting being on July 25, 1910, covering all matters between the parties prior to the contract of August 2, 1910. Appellee, by its cross-bill, sought affirmative relief against appellant in the sum of $10,050 for alleged indebtedness of appellant to appellee, and for the further sum of $10,000 for alleged breach of contract; but before final judgment ap-pellee announced in open court that it no longer would prosecute its cross-action, and caused the same to be dismissed. Appellant, by verified supplemental petition, denied generally appellee’s allegations, and pleaded specially that the contract of March 1, 1911, was modified by telegrams constituting a part of the same.

In addition to the finding that the parties executed the contracts above referred to, the trial court made and filed the following conclusions of fact, which this court adopts:

“(4) I find that the plaintiff acted as the agent of the defendant in soliciting life insurance for it from said 16th day of March, 1909, until about the 4th day of September, 1911, and that in such employment the rights of the parties were fixed by the first-mentioned contract, as construed by the parties, from the 16th day of March, 1909, until about the 4th day of September, 1911, and that in such employment the rights of the parties were fixed by the first-mentioned contract, as construed by the parties, from the 16th day of March, 1909, until the 2d day of August, 1910, and that said rights were, from said 2d day of August, 1910, until the 1st day of March, 1911, fixed and determined by said first-mentioned contract, as construed by the parties, and as amended by said amendment of August 2,1910, and that the rights of the parties from and after said 1st day of March,' 1911, were fixed and determined by the contract of the last-named date.

“(5) From the time of the execution of the first contract until after the plaintiff left the employ of the defendant, the plaintiff and defendant computed the commissions of the plaintiff on the insurance written by him on ■the larger, or second, schedule in said first contract set forth, and treated the monthly salary advances as an advance to the plaintiff against the commissions earned by him, and the defendant charged the plaintiff on its books with all moneys paid to him, whether the same was advanced him or paid on account of expenses, and gave the plaintiff credit for all moneys collected and remitted by him, and gave him credit for all moneys collected on notes sent by him to the defendant in payment of premiums on business written by plaintiff; and it also charged plaintiff on its books with the net amount which would be due it, after deducting the larger schedule of commissions, as provided in said first contract. In other words, from the very inception of the first contract, the plaintiff and the defendant treated all business between them as though the time had arrived, as provided in said contract, when all salary, expenses, and costs of securing the business written by plaintiff should be added together, and the difference between that cost should be deducted from the total amount that would have been earned by plaintiff on the larger schedule of commissions, counting paid for business only, should be the earnings of plaintiff under said contract. Not only was the contract so treated, but the defendant kept the account of plaintiff, and acquiesced in by him. When an application for insurance was received by defendant from the plaintiff, and the policy was issued, the defendant, on its books, charged to plaintiff’s account the net portion of the amount of the first year’s premium, after deducting from the total first-year premium the amount of commissions which would be due plaintiff, based on the larger schedule of commissions, and all payments of premiums made by plaintiff to the defendant was credited to his account. In most cases notes were taken by plaintiff for the first-year premium on insurance procured by him; the notes were payable to the defendant, and -were in most instances sent by the plaintiff to the defendant. Both the plaintiff and the defendant were engaged in the collection of the notes thus taken, and, when any amount was collected on these notes, it was credited to the plaintiff’s account, and a credit slip was sent him by the defendant. When plaintiff collected any of the notes or any part thereof, if he sent the same to the defendant, he was given credit for the amount so sent on the books of the defendant. During the entire time that plaintiff acted for the defendant under the contracts, both parties treated the notes received in payment of premiums as though they were jointly interested in the same.

“(6) The total amount of commissions earned by plaintiff during the time he was in the employ of the defendant, based on the-larger schedule of commissions, and counting all business, whether paid for or not, and counting the allowance agreed to be allowed for reinsured business, as set forth in the letter of August 2, 1910, was the sum of $21,743.87.

“(7) The defendant has paid to the plaintiff a total of $16,356.28, consisting of monthly advances of $12,033.33, special -advances against his interest in the notes held by defendant, $2,118, travelling and incidental expenses, $1,673.45, and office rent, $531.50.

“(8) The defendant, at the time of the trial, had on hand uncollected notes turned into it by plaintiff as payment of first-year premiums on business secured by him in the total sum of $10,773.89.

“(9) All monthly payments made to plaintiff by defendant were treated by both parties as advances to plaintiff against commissions earned by plaintiff under his employment.

“(10) In all the dealings between plaintiff and defendant from the date of the first contract to the time plaintiff left the employ of the defendant, it was never contended by the plaintiff until the filing of this suit that he was entitled to commissions on business secured by him until the notes taken in payment of the premiums were paid, and, in all instances where the defendant advanced plaintiff any money over and above his regular monthly drawing account it was considered by both parties as an advance against the plaintiff’s interest in the uncollected notes on hand.

“(11) Plaintiff never, at any time prior to the institution of this suit, claimed that he was entitled to a monthly salary and the commissions, based on the smaller schedule of commissions as provided in the first contract. And all advances made to plaintiff over and above his monthly advancement was made by the defendant with the understanding, fully acquiesced in by plaintiff, that plaintiff was working for a commission based on the larger schedule of commissions, less the advances and expenses paid by defendant.

“(12) If plaintiff is entitled, under the first contract, as amended August -2, 1910, to a cash salary, his expenses, and the commissions as provided in the smaller schedule of commissions, as claimed by him, the defendant has paid him everything that is due him on this theory of the contract, unless it is liable to him for commissions on business for which he accepted notes in payment of the premiums, and which notes have not been paid.

“(13) On the 25th day of July, 1910, there was rendered to the plaintiff by the defendant an account in writing showing: the account of plaintiff with the defendant on the 22d day of July, 1910, which was checked over by plaintiff, and certain objections pointed out in writing by him, which said objectionable matters were at his instance corrected, and when correct the same was a stated account between the parties of date July 22,1910, which showed that at that time the plaintiff was indebted to the defendant in the sum of $14,843.55, which result was obtained in accordance with the method the defendant kept its books, as shown in paragraph 5 of these findings, which was in accordance with the way both parties construed the contract, that is, to allow plaintiff the larger scale of commissions, and charge him with all advances made to him. Accepting the stated account as correct at the time it purports to show the state of the account, there would not be anything due the plaintiff from the defendant at the time of the trial, whether the business was figured on the construction of the contract which the parties had given to it, or if figured on the basis claimed by plaintiff in his pleading.

“(14) Exhibit B attached to defendant’s first amended original answer and cross-bill correctly shows the business secured by plaintiff, the net amount of the premiums that would be due the defendant from business secured by plaintiff, the amounts advanced and paid to the plaintiff, the amount of unpaid notes on hand and uncollected, except that some portion of the notes were paid between the date the exhibit was prepared and the date of the trial. The exact amount of unpaid notes on hand is shown in a prior finding, and I find the account contained in said exhibit correct in all respects except as to the amount of unpaid notes on hand.

“(15) In the course of dealing between the plaintiff and defendant, the defendant never accepted any notes forwarded to it by the plaintiff as payment of any indebtedness due it by plaintiff, but that the said notes were kept by defendant for collection purposes, and that the plaintiff was never credited with any of such notes, or any part thereof, until payment was made thereon, either in whole or in part, and then wás only credited with the amount that was paid.

“(16) The defendant kept its books in this way, and the plaintiff knew from the inception of his relationship with the defendant that the defendant was treating the notes taken by him for policy premiums in the matter outlined above, and the plaintiff acquiesced in such course of dealing, and acquiesced in such treatment by the notes so made by defendant.

“(17) There was a verbal understanding between plaintiff and defendant at the time of making the first contract to the effect that the notes taken by plaintiff for premiums should be forwarded by him to the defendant, and that the defendant should hold them for collection purposes, and as collateral security against the advances made to him by the defendant from time to time.

“(18) The defendant sent to the plaintiff regularly statements showing that the notes so forwarded to it by the plaintiff were being treated in this manner, and that the plaintiff never offered any objection thereto until this suit was filed.”

The assignments of error relate solely to and challenge the correctness of the court’s conclusions and the judgment rendered. The first is to the effect that the court erred In finding that tide rights of the parties were fixed by the contracts as construed by them, for the reason that said contracts were complete and unambiguous, and were not subject to be changed, varied, or added to by the construction of the parties. There is no specific assignment of error questioning the admissibility of the testimony upon which the court’s finding.here attacked is predicated either for the want of pleading or for any other reason, and this testimony abundantly sustains said finding. The provisions of the contracts with respect to the commissions and' the amount appellant was to receive monthly for his services, when considered separately, may be certain and unambiguous, but, when taken and construed in connection with other provisions of the contract, and the contract considered as a whole, seems to present such uncertainty regarding these matters as authorized the introduction of parol evidence showing the sense and meaning in which the' language employed was used. In the contract of August 2, 1910, “advances” is used in the same connection as “salary” is used in said contract of 1909, and evidently to express the same purpose and intention of the parties. That the contracts, however, were by all the parties thereto and at all times until appellant ceased to solicit insurance for appellee construed and treated as is contended by ap-pellee, and as found by the court, is a conclusion that is almost irresistible when all the evidence bearing upon the question is fairly considered. The testimony of the appellant is at variance with some of the trial court’s findings of fact; but this simply'presented an issue of fact for the determination of the trial court, whose finding is conclusive upon this court The evidence developed that appellant worked under the contract of March 16, 1909, until it was modified,' at his request, by the letter or writing of August 2, 1910, above mentioned. Prior to this modification, and with the knowledge of appellant, and without objection on his part, the books of appellee had been so kept that the appellant was charged with all cash sent to him, with all advances made to him for traveling expenses, and with other items of a like nature. Likewise was he charged with the amount due the appellee under the maximum, or highest, rate of commissions which appellant was able to earn under the contract of March, 1909. Of this appellant was fully advised, and acquiesced in. For no charge was ever made against him on appellee’s books, and no credit ever passed to his account without the forwarding to him immediately by the appellee of .a debit and credit memorandum apprising him of the transaction, which were received and accepted by him without protest whatever. It is manifest that by his own actions appellant led appellee to believe that he construed the contract as ap-pellee did, and that he was working under the maximum clause of the contract, and induced appellee to increase his drawing' account to ‘the amount stated in the letter or contract of August 2, 1910. The request for the increase was made and granted after appellant had accepted an accounting with appellee, in which no mention was made of any other possible contingency under which he might be working, excepting the one which both parties had recognized in all of their dealings. We conclude, as did the trial court, in effect, that it was the intention of the parties in the execution of the contract of March, 1909, and as amended or changed by the contract of August, 1910, that appellant should be allowed a monthly advance of the sums mentioned in said contract and amendment, which should be charged against appellant’s commissions to be earned under said contracts, and that said monthly advances were not intended as a salary to be paid appellant in addition to his commissions. This at all events, evidently is the way the contract was treated and construed by the parties, and its terms and provisions are of such a character and uncertainty that the right of the parties should be determined in accordance with their construction of them. As found by the trial court and heretofore shown, appellant always claimed commissions under the second or larger schedule mentioned in the contract, and by his acts treated the payments as advances against commis.-sions to be earned by him. Both parties from the very inception of the first contract treated all business between them as though the time had arrived’ as provided in said contract when all salary, expenses, and costs of securing the business written by plaintiff should be added together, and the difference between that cost should'be deducted from the total amount that would have been earned by plaintiff on the larger scale of commissions, counting paid for business only; that “all monthly payments made to plaintiff by defendant were treated by both parties as advances to plaintiff against commissions earned by plaintiff under his employment.” Thus.from the very inception of the dealings between appellant and appellee they recognized but one scale of commissions, the larger or maximum scale, against which was charged all advances and all expenses of procuring the business. It does not appear that appellant ever suggested to any one that he was working under any scale of commissions excepting the maximum scale. So that it occurs to us that whether or not the contract is capable of two constructions in regard to the money paid to appellant, that is, whether it was paid to him as an advance or as a salary, yet, since appellant induced appellee to believe that he was operating only on the maximum scale of commissions, and receiving the money given him as advances, and not a salary, and thereby so misleading appellee as to obtain an increase in his drawing account as provided in the contract of August 2, 1910, is estopped from claiming that the contract of 1909 can he construed in any other way than as both parties construed it before and when they changed or modified it on August 2, 1910.

The evidence is amply sufficient to warrant the court’s conclusions that the appellant acquiesced in the appellee’s method of keeping its accounts, and that all monthly payments made to the appellant by appellee were treated by appellant as advances to him against commissions earned by him; and appellant’s assignments 2 and 3, charging that the court erred in these findings, will be overruled.

The sixth assignment, complaining that the court erred in finding that appellee was not liable to appellant for commissions on all 'business when notes were accepted by appel-lee,' will also be overruled. The contention, here is “that the contracts and modifications thereof in writing, which constitute the basis of plaintiffs cause of action, together with the evidence, do not warrant such finding.” The record does not, in our opinion, sustain this contention. There is no provision in either contract upon which appellant sues entitling him to commissions on insurance secured by him where notes were taken for the premiums before the collection of such notes, and the evidence introduced on the subject abundantly supports the court’s finding that commissions for writing such insurance were not earned until the notes taken for premiums due therefor were collected. The only provision of the contracts' upon which appellant’s cause of action is based that may be considered as in any wyay relating to the taking of notes for premiums is that “all settlements taken by the agent are to be sent to the company,” and the record otherwise discloses that the notes sent in by appellant for settlements which he took on policies were never at any time included in the assets of appellee, but were simply held as collaterals; that at no time was appellant ever credited with the amount of his commissions when notes were taken for the premiums to be paid by the insured until such notes were paid. All of this appellant well knew and evidently acquiesced in, because it appears that no charge was ever made on appellee’s books, or credit ever passed to his account, without a debit or credit memorandum being immediately sent to appellant apprising him of the transaction, and no word of protest to appellee’s method of dealing with and treating these notes, or to its method of bookkeeping, appears to have been uttered by appellant to any officer of appellee until this suit was filed. Our conclusion is that the' evidence was amply sufficient to show that the notes sent in by appellant to appellee for settlements which he took on policies were received by appellee, with appellant’s knowledge, only as collateral to his account, and that the money paid him was simply an advance against commissions which were to be earned when the notes were paid. It was shown without dispute that more than $9,000 remained uncollected at the time of trial on notes taken by appellant and sent to appellee, and the trial court correctly held that appellee was not then liable to appellant for such commissions as he will have earned when this money is collected. There is no provision of the written contracts relied on by appellant that was contradicted, varied, or added to by the introduction of the parol proof admitted to show that the notes taken by him in settlement of premiums were held by appellee as mere collateral, and that appellant’s commissions for such business were not earned until such notes were paid by the makers thereof.

It is further assigned that the court erred in finding and holding that the account rendered appellant on the 25th day of July, 1910, was a stated account. We think there was no error in this action of the court. The court’s finding is that on the 25th day of July, 1910, an account stated was had between appellant and appellee which showed that appellant was then indebted to the ap-pellee in the sum of $14,843.55, and that, accepting the stated account as correct at that time, there would not be anything due the appellant from appellee at the time of the trial of this case, whether the business was figured on the construction of the contract which the parties had given to it, or on the basis claimed by appellant in his pleading. Now, as pointed out by counsel for appellee, it appears that in July of 1910 the plaintiff, on one of his trips for obtaining a further advance of money, went to the home office of appellee in Chicago, and requested that he be allowed to draw more heavily against his account. In order to see how much he owed, so that it might be ascertained whether collateral held against his account was sufficient to warrant a further advance of money, his entire account from the time he commenced business with the company up to the 22d day of July was gone over between Mr. C. A. Goodale, the then secretary, and the appellant. This account was taken from the books of the company, and reduced to writing. It appears that this detailed statement of the account was carefully gone over and checked by the appellant item by item, and that he made objection to several items appearing thereon. The objections which he made were reduced to writing, and he gave a written acknowledgment that, with the exception of those items, he took .exception to nothing else in the account as incorrect. It also appears in evidence that on every item to which he took exception a credit was given to him on the books, so that when completed the account was in the exact shape which he claimed at that time that it should be in. This closed the account by the assent to its correctness, and it then became an account stated. Whittlesey v. Spofford, 47 Tex. 13. And according to tlie court’s finding, under any theory of the lawsuit or of the contract, there was nothing due to the appellant at the time of the commencement of the suit. Since the date when the said amount of $14,843.55 was found to be due and owing by the appellant to appellee, appellant had not earned, even under his own theory of the contract, enough to pay off and satisfy the indebtedness so found to be due at that time. Appellant himself testified: “I have been over this exhibit of yours once. I presume it is all right. I did not find anything wrong with it on your theory; but on mine it is all wrong.” Again he says: “I knew that was the method of keeping the accounts of July 25, 1910. If it had panned out all right, I would not have had any objections to it. I didn’t have any objections to the way the company was handling these notes, and the way they were keeping my accounts on the books I never made any objection. I don’t know of any that I can point out that I was not aware that the company was handling in that way. I signed the instrument dated July 25, 1910.” He further admits at the same point that he had a memorandum of the full account at that time, and that every one of the items to which he had made the objection as noted in the statement of July 25, 1910, was credited. The position assumed by appellant that there was not an account stated between the parties at the time mentioned as contended by appel-lee cannot be maintained. Aside from what has already been stated showing such an account, we find that C. A. Goodale, who carried on the negotiations, states emphatically that the statement of account signed and acknowledged by appellant on July 25,1910, included everything upon which there was any dispute, and there can be no doubt from the testimony of this witness, who carried on the negotiations which led up to the account stated, but who was not connected with appellee at the time he testified, that there was at that time a complete settlement of the account. It not only appears that appellant agreed to the statement of the account as mentioned, but that on the strength of his having agreed to it he procured an increase of his monthly advance from $250 to $350. That appellee must have understood in making such increased advance that the accounts between appellant and itself up to such time had been settled by the account stated cannot well be doubted, and that appellant should be declared estop-ped, after procuring the pecuniary advantage referred to, and inducing appellee to regard and accept the account then presented as an account stated, from asserting that it was not such account is equally as clear to us. Heidenheimer v. Baumgarten, 9 Tex. Civ. App. 94, 29 S. W. 208; Henry v. Chapman, 4 Willson, Civ. Cas. Ct. App. § 105, 16 S. W. 543; Hampton v. Alford, 4 Willson, Civ. Cas. Ct. App. § 44, 14 S. W. 1072.

Appellant’s seventh and eighth assignments are treated together. They relate to and present for decision separate and distinct questions; they are not followed by a sufficient statement of the facts to enable us to determine, without resort to the record, whether or not the trial court erred in the rulings complained of, and, under the rules prescribed for briefing cases, is not entitled to consideration.

The last complaint is styled an error apparent upon the face of the record. The proposition, in substance, is that, if the judgment of the trial court is affirmed, the appellant will lose a valuable right, in that he cannot hereafter recover the commissions which he will have earned when the notes taken for premiums have been collected. If this is the effect of the judgment, to that extent it is erroneous, and will be corrected so as to leave appellant’s right to recover hereafter such commissions as he may be entitled to by reason of the collection of any of the notes in question unimpaired by the judgment rendered in this case.

The assignments disclose no reversible error, and the judgment, as modified, is affirmed.


source: Caselaw Access Project

author: HUPP, O. J.

license: Public Domain

text:
    HAILE v. KELLER.
    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 10, 1914.)
    1. Bbokeks (§ 82) — Aciion job Commissions —'Variance.
    Where a broker sued for commissions alleging an express contract to pay 25 cents per acre for a sale' of defendant’s lands on terms satisfactory to him, plaintiff could not recover on proof that it was agreed he was to receive for his compensation all over $4 an acre for which he should sell the land.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dee. Dig. § 82.]
    2. Bbokeks (§ 86) — Action fob Commissions -Evidence — Findings.
    In an action for brokers’ commissions, evidence held to sustain a finding that the alleged purchaser of the whole land was not ready, willing, and able to take the land on the terms on which the seller had authorized him to dispose of it.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 116-120; Dec. Dig. § 86.]
    3. Bbokeks (§ 69*) — Commissions—Contract Price — Reasonable Vauite of Services.
    Where a landowner authorized a broker to sell the land at $4 net to such owner, and the owner without knowledge of the fact sold to the broker’s customer for $4, the broker could only recover the reasonable value of his services in the transaction.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 55; Dec. Dig. § 69.]
    Appeal from District Court, Dickens County; Jo. A. P. Dickson, Judge.
    Action by C. C. Haile against Jim Keller. Judgment' for defendant, and plaintiff appeals.
    Affirmed.
    Browne & Hawkins, of Paducah, for appellant. B. D. Glasgow, of Spur, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUPP, O. J.

O. C. Haile, appellant, as a real estate broker, brought suit against Jim Keller, appellee, for commissions, alleging that appellee placed and listed ^,750 acres of land with appellant to secure “a purchaser therefor upon the following terms and conditions, to wit: The defendant (appellee) agreed to pay this plaintiff (appellant) the sum of $.25 per acre on all of said land as a commission if this plaintiff should secure a purchaser therefor who was ready, willing, and able to buy said land upon terms satisfactory to the defendant, whereby it was agreed and understood by and between the plaintiffs and defendants that, if plaintiff would secure a purchaser to the above-described land upon the terms and conditions hereinabove set out, the defendant would pay to the plaintiff the commission of $.25 per acre, on the full amount of selling price, of said lands and premises to be paid to the plaintiff by defendant at the time of making said sale or securing said purchaser, which the defendants agree, promise, and obligate themselves to do. Plaintiff would represent to the court that in pursuance to said agreement so made the plaintiff did on or about the 1st day of January, A. D. 1913, procure for defendant a purchaser for said 3,750 acres of land in the person of one T. J. Stanfield of Cottle county, Tex., which said person was ready, willing, and able to purchase said land at the price and on the terms acceptable to the defendant, and which had been agreed upon between said plaintiff and the defendant, whereby the defendant became bound and 'liable and promised to pay this plaintiff the said sum of $.25 per acre for said 3,750 acres of land.”

It will be seen from the pleadings that this suit was brought on an express contract to pay 25 cents per acre on the 3,750 acres when sold upon terms satisfactory to Keller. The contract proven is an entirely different one. The uncontroverted testimony is that appellant, Haile, was to have for his compensation all over the sum of $4 per acre for which he should sell the land. The appellant did not prove his case as alleged. The evidence is, if there was a sale, it was sold at only $4 per acre, which had been agreed Keller was to get for his land. Orynski v. Menger, 15 Tex. Civ. App. 448, 39 S. W. 388.

In this case the agent does not sue for the reasonable value of his services in procuring a purchaser ready, willing, and able to buy on terms satisfactory but for the contract price of his services. There is no evidence of the value of the agent’s services. The evidence offered by appellant is that T. J. Stanfield agreed to take the land at $4,25 per acre. The court was justified in finding that T. J. Stanfield did not agree and that he was not ready, willing, and able to take the land upon the terms upon which Keller was willing to sell it. The appellant testified he priced the land at $1.25 cash per acre and the balance to be paid in eight years. “This was the terms I was to price it on.” T. J. Stanfield said he did not have the “cash money” and tried to put in some land on the trade situated in Oklahoma, some town lots and some vendor’s lien notes which he testifies Keller would not accept, stating that he would not take trade but wanted the money and the vendor’s lien on his own land. This witness further testified: “I never accepted the land at the terms and price it was priced by Mr. Haile, as Mr. Haile told me to see Mr. Keller.” Keller testified in substance to the same effect. We do not think appellant proved that T. J. Stanfield was ready, willing, and able to buy upon the terms specified and he never accepted such terms. We think the testimony was sufficient to warrant such a finding by the trial court.

In this case it appears that Keller was not aware of the fact that T. J. Stanfield was a customer of Haile while he was negotiating with T. J. and G. A. Stanfield. Haile did not notify Keller that Stanfield was his customer, and Stanfield did not notify Keller that Haile had induced him to look at the land or to see Keller. The testimony of Keller is to the effect and in some particulars corroborated and is sufficient to have warranted the trial court in finding that Stan-field told Keller that he was not sent to see the land or Keller by an agent. It will be observed this was important to Keller in fixing the price of the land under the agency contract, as $4 was all he desired or asked for the land. If Stanfield had agreed with Haile to1 pay $4.25 for the land, Keller could not defeat Haile out of his agreed commission by selling at a' less price. If it was done for that purpose, there is not question under the authorities but that he would be liable. Having done so innocently or ignorantly, the rule may be different as to what his compensation should be. If the sale was consummated which Haile claims to have made, or if Keller refused to complete it, Haile would be entitled to the agreed compensation. It has been said by the courts in this state: “While the owner, has such agent at work and himself sells to some person that comes along, he does so at the risk of that person having been procured by the agent.” McDonald v. Cabiness, 98 S. W. 943; Id., 100 Tex. 615, 102 S. W. 721; Bound v. Simkins, 151 S. W. 572. In the case of Schultz v. Zelman, 111 S. W. 776, Judge James, who rendered the opinion first in the McDonald Case, supra, said: “Under these facts and conditions, there is no doubt that the sale was due to Mrs. Schultz’s services, and, under the above decision, she would be entitled, not, however to the agreed commission of 5 per cent, on the sale, because the sale resulted in bringing a less price than was specified in connection with the agreement to pay her that percentage, but to a reasonable compensation.” The pleadings asked for a reasonable compensation in that case, and were so noted by the court. ■ In the McDonald Case it was held also: “But plaintiff in his petition asks for reasonable compensation for the services of procuring a purchaser to whom appellant sold on terms satisfactory to himself for more than he expected to get net from any purchaser obtained through plaintiff. The authorities, and those in this state, appeal to hold that the agent in such a case is entitled to some compensation.” The court then further said: “As we have already said, the terms of the contract are such as may, under the proof here, debar plaintiff from receiving the excess over $3.25 an acre. But plaintiff has also asked for ' reasonable compensation * * * on that basis.” The Supreme Court op writ of error apparently approved the decision of the Court of Civil Appeals upon that statement. The right of a broker to compensation for his services, whether the principal had actual knowledge of such service at the time of completing the sale, is adopted by the Texas courts and is apparently the rule by the majority of the courts. Note Quist v. Goodfellow, 8 L. R. A. (N. S.) 153; Ball v. Dolan, 15 L. R. A. (N. S.) 272; Gilmore v. Balio, 34 L. R. A. (N. S.) 1050.

If appellant was' entitled to recover under his pleadings in 'this ,case, it was 25 cents per acre. He claims he found a purchaser. That purchaser testified he did not accept the price and terms offered by Haile; that is, $4.25 per acre, $1.25 cash per acre. The cash T. J. Stanfield testified he could not pay, and he never accepted the price $4.-25, but accepted the offer of $4 per acre if Keller would take trade. If it can be said he ever purchased at that price and on those terms, appellant was entitled to only reasonable compensation for his services in finding such purchaser. This appellant did not ask for or prove. In this case Keller fixed his price at $4 net to him, and had he known that there was' an agent he would not have sold for that price and doubtless would have added the commission to • the price. Under such facts, we think appellant is not entitled to recover the contract price, but only what his services were reasonably worth in the transaction. Schultz v. Zelman, 111 S. W. 776.

We also think the court was justified in finding there was no sale to T. J. Stanfield. The facts show that, when T. J. Stanfield notified Keller he could not pay the cash required, he then suggested that his father, who lived at Waco, Tex., would perhaps buy the land for a brother of Stanfield. The appellee and T. J. Stanfield went to Waco and saw the father of T. J. Stanfield, G. A. Stanfield, and appellee and G. A. Stanfield entered into a written contract on February 1, 1913, in which Keller agreed to sell to G. A. Stanfield 3,750 acres of land in Dickens county, for the sum of $4 per acre, $2,500 cash, the balance due in one, two, three, four, and five years'from date of deed. Keller was to furnish abstract and deliver possession to G. A. Stanfield on May 1, 1913; Stanfield agreeing to take the land if his attorney found a perfect title to the land in Keller. The parties each put up a note payable to the order of the other for $1,000, “as a forfeit1 should they not comply with this contract.” Keller’s testimony is to the effect that the sale was to G. A. Stanfield and to him alone. He told G. A. Stanfield that he would have to come to Spur, where appellee lived, to sign the papers. This Stanfield never did. Keller wrote to him two or three times but received no answer. It also appears the attorney employed to examine the abstract pointed out some defect in the papers, which is not shown. This defect Keller claims to have corrected. G. A. Stanfield did not make the cash payment or execute the notes called for by the contract. His testimony is not in this case. The trade was not consummated by May 1, 1913, and Keller, in the afternoon of May 2, 1913, sold the land to another party for $4 per acre! T. J. Stanfield testified that the contract to purchase made by his father was in fact made for him, and if the court had accepted his testimony there was sufficient evidence to show a contract of sale to him; but we think there is also sufficient evidence to support a finding by the trial court that there in fact was no sale made to T. J. Stanfield, as alleged by appellant. There is no evidence of a purpose to defeat appellant out of his commission by making the contract with G. A. Stanfield, and it appears to have been made at the time by Keller in good faith. We do not think the evidence supports appellant’s allegation to the effect that he procured a purchaser in the person of T. J. Stanfield, who at that time was ready, willing, and able to buy the lands upon terms satisfactory to Keller.

We shall not discuss the terms of the contract or whether it can be enforced or not. However, we do not agree with appellee in his contention as to the construction of the forfeiture clause. Our views on this point will be found expressed in the case of Crum v. Slade & Bassett, 154 S. W. 351. There are other features of the contract which have not been presented and which we will not further notice. We believe the judgment of the court, under the facts and pleadings, should be affirmed.

Affirmed.


author: HENDRICKS, J.

text:
    SECURITY TRUST & LIFE INS. CO. v. STUART.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 3, 1914.
    On Motion for Rehearing, Jan. 31, 1914.)
    1. Appeal and Erbob (§ 756) — Briefs—Form —Statutes—New Beieps.
    Where, at the time a cause was briefed for the Court of Civil Appeals, Act April 4, 1913 (Acts 33d Leg. c. 136), declaring that the assignments of error in the motion for new trial shall constitute the assignments on appeal, had been passed, but had not been published, and appellants’ counsel were not aware of the same, an application to rebrief the cause in order to comply with such act would be allowed.
    [Ed.. Note. — Por other eases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. § 756.]
    2. Evidence (§ 271) — Self-Serving- Decla-eations — Indorsement Without Recourse.
    Plaintiff, an insurance agent, having sold a policy to B., and he not having paid the premium, plaintiff took his note therefor, which was sent to the insurer’s state agent, and by him to the company. The note not being paid when due, plaintiff offered to pay the cost of term insurance on a transfer of the note to him, and for this purpose the state agent wrote a letter to the insurer’s vice president, stating that plaintiff refused to pay the amount as promised, unless the company would indorse the note over to him, but was willing for the company to indorse without recourse to it. He also stated that he was returning the note to the company for proper indorsement _ to plaintiff without recourse, and asked for its return with a draft attached to a certain bank, which plaintiff agreed to take for the cost of the term insurance. Held, that, the note not having been properly indorsed “without recourse,” and plaintiff having sued the company on the in-dorsement, the letter was admissible to show that the transfer was in fact intended to be 'without recourse.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    3. Evidence (§ 378?) — Documentary Evidence — Foundation.
    In an action on a premium note indorsed by the payee to plaintiff, evidence held sufficient to show that a letter offered in evidence from the insurer’s state agent to it negotiating the transfer, and' stating that it was to be made without recourse, had been duly received.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1648-1655; Dec. Dig. § 378.]
    4. Bills and Notes (§ 520) — Tránsese—In-dorsement Without Recourse — Mistake.
    Where defendant insurance company transferred to its soliciting agent a note taken by him for a premium, after the note had been dishonored, in consideration of his paying the cost of the term insurance, evidence held to warrant a finding that the words “with recourse” following the signature of the company as indorser was a mistake, and that it was intended that the transfer should have been without recourse to the insurance company.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1813, 1832, 1836, 1837; Dec. Dig. § 520.]
    On Motion for Rehearing.
    5. Evidence (§ 378) — Documentary Evidence — Indorsements.
    An indorsement on a letter, sent by an insurer’s state agent to its home office, of the words, “Received June 11, 1906,” was not of itself evidence of the receipt of the letter, in the absence of connecting proof that the party making the indorsement represented the insurance company, and had authority to make it.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1648-1655; Dec. Dig. § 378.]
    Appeal from Wilbarger County Court; J. B. Copeland, Judge.
    Action by R. T. Stuart against the Security Trust & Life Insurance Company and one Bradley. From a judgment in favor of plaintiff, defendant Insurance Company appeals.
    Reversed and remanded, with directions as to defendant Insurance Company, and affirmed as to defendant Bradley.
    See, also, 160 S. W. 108.
    Cecil Storey and L. P. Bonner, both of Vernon, for appellant. W. D. Berry, of Vernon, for appellee.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HENDRICKS, J.

In this case the appellant, after the cause was set for submission, filed a motion, requesting a rebriefing of his cause, stating that, at the time the case was tried in the lower court and briefed by counsel, the act of April 4, 1913 (Acts 33d Leg. c. 136), declaring that the assignments of error in the motion shall constitute the assignments in the cause, was not published, and that counsel were not aware of the same. Accompanying the motion were new briefs, tendered by appellant, containing the assignments embraced in the motion for new trial, and which the appellee asks us to refuse to consider. We will permit the new briefs to be filed as a part of the cause, and will consider them in the review of the case. We can see no injury to appellee in pursuing this course, and upon inspection of the new briefs and the old briefs, and the original brief of appellee and his reply brief, the issues are tendered and met, and considerable injury could result to appellant by a suppression of the new briefs.

In October, 1904, R. T. Stuart, the appel-lee, was an agent and insurance solicitor for the appellant, the Security Trust & Life Insurance Company, and at the same time one S. L. Ewing, of Dallas, Tex., was the state agent for said company. At that time one Bradley was insured in said company,' the policy having been solicited and sold by Stuart some time prior thereto, and Bradley, being unable to make a payment of a certain premium upon the policy, executed a note for the sum of $256.50 in favor of the company, maturing five months from date, and delivered by Stuart to the company. Stuart, on November 1, 1904, evidently in response to a letter from S. L. Ewing, the state agent, in regard to Bradley and the note, wrote Mr. Ewing that he “would stand for the term if the company was afraid of Bradley.” Stuart, in using the word “term” in said letter, meant “term insurance” connected with said poliey, which also meant the net cost of said insurance, which in this instance was $55.50. In so far as the record shows, there was no direct response to this letter; however, in October, 1905, Stuart communicates to Mr. Ewing that Mr. Bradley did not make as much wheat as he expected, “hut he will pay the term anyway, for I will see that he pays same, if possible, and I am confident he will.” Some time in 1906 negotiations occurred between Stuart, the local agent, and Ewing, the state agent, in regard to the payment of the “term insurance” by Stuart and the transfer of the Bradley note by the company to Stuart in consideration of the payment of same. In pursuance of those negotiations, the note was indorsed by the insurance company to R. T. Stuart, as follows: “Pay to the order of R. T. Stuart. Security Trust & Life Insurance Company, I. C. Gaverick, Treasurer. With recourse.”

The note, with its indorsement, was mailed to a bank at Vernon, Tex., with a draft evidencing the amount of the term insurance, $55.50, which was paid by Stuart, and on September 17, 1906, Stuart instituted this suit against Bradley and the Security Trust & Life’ Insurance Company, the appellant, upon the note.

The insurance company answers that the note was intended to be returned to the plaintiff indorsed “without recourse,” hut that, by mistake of the draftsman in making the indorsement, the same was left off of said note, and that plaintiff accepted it with knowledge of such mistake, and further pleads that “there was no consideration moving to it from plaintiff for the indorsement of the note except the payment of $55.50, which Stuart was obligated to pay, and which was not a consideration for the transfer,” apd that the “same was made at his request for his own benefit.” The indorsement “with recourse” upon this note is an unusual one. It did not broaden the blank indorsement, nor did it restrict the same. Mr. Ewing, the state agent, testified that the note was to be indorsed without recourse; Stuart testifying to the opposite. The last negotiations, if we interpret the record correctly, between Stuart and Ewing were at Dallas, and whatever agreement was made was to be submitted by Mr. Ewing to the company at its home office for its acceptance and approval. Mr. Gaverick, the treasurer of the company testified that he placed the indorsement on the particular note, and “the indorsement which appears on the note is not the indorsement that was intended to be placed on same; the indorsement that was intended to be placed on the note was “without recourse.”

The appellant offered in evidence a letter written by Mr. Ewing to Geo. B. Luper, vice president and general manager of appellant, communicating the negotiations between himself and Stuart in regard to the latter paying the term insurance, and which contains the following: “He [meaning Stuart] refuses to pay the amount as promised, unless you will indorse the note over to him. He is perfectly willing for you to make it without recourse to yourself, but insists that he may have something against Mr. Bradley in order to get his money. * * * Now I am returning this note, and would ask you to make the proper indorsement to R. T. Stuart, without recourse, and send it to the Waggoner National Bank, Vernon, Texas, with the draft attached for the $55.50 on Mr. Stuart, and he has agreed to take it up.” The introduction of this letter in evidence was objected to by appellee, and sustained by the court, on the ground that the letter was self-serving and an ex parte statement; the bill of exceptions showing that the letter was offered for the purpose of evidencing “the real basis for the company’s indorsement of the note to Stuart, and as evidencing the agreement between defendant company, made by its agent, S. L. Ewing, and the plaintiff, R. T. Stuart, it having been admitted by plaintiff that he never made any agreement with any one about the purchase of the note except S. L. Ewing, agent.” We think the letter was clearly admissible and a deprivation of a legal right to appellant. It may be that appellee had shown that he was not legally liable for the “term insurance” spoken of in this letter; but the evidence clearly indicates that the $55.50 paid by him was in the nature of idemnification to the company on account of the cost of this insurance carried for the term paid for by the note representing the premium. The policy had lapsed when the negotiations were consummated, and the note was long past due and unpaid. “A note indorsed and delivered after dishonor is between the indorser and indorsee a note on demand, and subject as such to the rules as to demand and notice.” 2 Parsons, Bills and Notes, p. 13. Stuart was paying the amount of the term insurance for the note, and, the note having matured, it is unusual that a note for $256.50 would be sold for the sum of $55.50, with liability for immediate payment upon demand by the transferee. Appellant says that Ewing had testified to practically the same thing with reference to the contents of the letter, and the error, if any, was harmless. We think not.

It is true the appellee contends that the agreement to pay $55.50, the amount of the term insurance, and the payment of it, was a purchase of the note; but upon analysis of this record upon the question of its transfer, and considering all the testimony as to the agreement between these parties, we are inclined to think that the appellant was entitled to every “scrap” of material testimony which could be offered on its theory of the case, and the error was not a harmless one on account of other testimony, rather conduced, along the same line. This letter does not come within the rule of hearsay. We believe a slight change in the status of this cause would demonstrate its admissibility: If the note were negotiable and transferred before maturity by the insurance company to Stuart, and the company were to attempt to enjoin, upon proper allegations, the transfer of said note by Stuart to an innocent purchaser, with allegations of reformation on account of the mistake, how would it prove its case, if the communications from its agent to it by letter of the proposition of Stuart were excluded from the record? Because the company is defending its liability upon the note upon the same grounds, we are unable to understand why the admissibility and pertinency of this - testimony would be devitalized. To put Ewing upon the stand in the case mentioned, and prove its theory of the conditional agreement between Stuart and Ewing (amounting in reality to no more than an offer), and not allow Ewing to testify that he communicated the offer, would present a case, at least under some conditions, where a party had a contract, but could never prove it In the case of Britt v. Burghart, 16 Tex. Civ. App. 78, 41 S. W. 390, this condition is presented: Burghart employed Britt and Easton, through his agent, D. A. Turner, to represent him as attorneys in the collection of some notes. Turner, the agent, testified on the stand that he made the agreement, but that he did not remember the whole agreement, “but that whatever it was he reported it immediately thereafter to Mr. Burghart, and to one Mr. Johnson.” Thereupon Johnson was permitted to testify that “Turner represented to him and Burghart * * * the terms of the contract as agreed upon with Britt and Easton, that the latter would undertake the collection of the claims for the 10 per cent stipulated in the notes if suit were brought, and for $25 if suit was unnecessary.” The attorneys in that case employed by Burghart contended 'that a different contract was made with Burghart, and Chief Justice Tarlton said: “Under these circumstances we think the testimony of Turner and Johnson was admissible upon the question of the character of the contract, though Britt and Eas-ton were not present when Turner stated to Johnson and Burghart what the terms of the contract were.” We rather infer from the opinion in the case that the particular assignment passed upon by Judge Tarlton was really the turning point of the case, and we presume was in the application for writ of error, and the assignment was passed upon by the Supreme Court when the writ was denied. The analogy between the two cases as to the admissibility of the testimony we believe to be complete.

Appellee says that no evidence was offered that the company ever received this particular letter. The letter was indorsed, “Received June 11, 1906,” which, in connection with the statement of Ewing recited in the bill of exceptions, that he wrote the company the terms and conditions upon which he and Stuart agreed, and aided by the further statement in said bill that the letter identified by Ewing was the one written by him to said company, and was the only information possessed by it for the terms of the transfer for the note, with the further admission by plaintiff, as shown in said bill, that he never made an agreement with any one except Ewing with reference to this matter, and all this, taken in connection with the testimony of the treasurer of the company, we think tended to show the receipt of said letter by it. We do not think that the record shows that the transfer of this note is without consideration, for the reason that it does not show affirmatively that Stuart, in paying the amount of the ‘‘term insurance” for the transfer of the note, was paying an amount which in law he was obligated to pay.

However, upon a careful consideration, without extending the limits of this opinion, and without .presenting a development of the testimony, and the inferences therefrom, we are of opinion that upon the introduction and proper proof of the letter from the state agent, Ewing, to the company, and its receipt by it, and that it was the only presentation to that company upon which it acted of an agreement for the transfer of said note, and the record is the same upon another trial as in this as to other proof, the trial court should peremptorily instruct a verdict for defendant.

With this proof and no ■ countervailing testimony showing that any different proposition was ever submitted to the insurance company, this court is convinced that, when the treasurer of the company wrote ‘.‘with recourse” following the indorsement in blank upon the said note,'the same was a mistake, and that it was intended to write “without recourse” in conformity, wijth the proposition submitted by Ewing. Whatever the conflict may be between Stuart and Ewing, as to the proposition submitted by Stuart to Ewing, does not destroy the cogency of the proof in this record as to the proposition submitted by Ewing to the company and the mistake the company made with reference to the in-dorsement upon the back of the note. If that be true, appellee’s cause of action would have to sound differently than the form exhibited in this record for relief against said company for any amount.

This cause is reversed, and remanded, with directions, without disturbing the judgment against Bradley, which is affirmed.

On Motion for Rehearing.

In our original opinion in this cause we noted an indorsement upon á letter purported to have been written by S. h. Ewing, the state agent of the insurance company, to George B. Luper, vice president and general manager of ' said company, communicating the negotiations between himself and. Stuart in regard to the payment of the term insurance, and the transfer of the note sued upon in this cause, and upon said letter was the indorsement, “Received June 11, 1906.” We suggested in our opinion that this indorsement, taken in connection with other testimony, tended to show the receipt of the letter by the insurance company.- Upon reconsideration, we are inclined to think, as presented by the bill of exceptions and the record, that said indorsement on said letter would not be admissible testimony, unless connection was made with reference to the proper party representing the insurance company making said indorsement. However, we still think that the testimony was ample upon the receipt of the letter by the insurance company, considering Ewing’s evidence that it was the sole communication in regard to this matter, and with reference to which the appellant company intended to act when the indorsement was written upon the back of the note,, and the transfer of same was made to Stuart.

The motion is in all things overruled.

HALL, J., disqualified, not sitting.