author: HENDRICKS, J.

text:
    DRUMMOND v. WHITE-SWEARINGEN REALTY CO.

    (Court of Civil Appeals of Texas. Amarillo.
    Feb. 12, 1914.
    Rehearing Denied March 14, 1914.)
    1. INSURANCE (§§ 96, 111) — Foreign Corporations — Civil Liability of Agents.
    Under Rev. St. 1911, art. 4961, providing that any person soliciting insurance for any insurance company, or taking or transmitting, other than for himself, any application or policy, or receiving or delivering a policy, etc., shall be held to be the agent of the company, and article 4962, providing that any person doing any of such acts for or on behalf of any insurance company which has not complied with the requirements of the laws of this state shall be personally liable to the policy holder, an insurance agent, whose companies would not accept a particular risk, and who called the owner’s attention to the advertisement of a broker in another state, and was asked by the owner to procure a policy through such broker, and' did so procure a policy in a company not authorized to do .business in this state, which he had never previously represented, was the agent of such company, and was personally liable on the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 126; Dec. Dig. §§ 96, 111.]
    2. Insurance (§ 111) — Foreign Corporations — Givil Liability of Agents — Defenses.
    Under Rev. St._ 1911, art. 4962, providing that any person, doing any of the acts on behalf of any insurance company which has not complied with the laws of this state, which, under article 4961, makes Mm the agent of such company, shall be personally liable to the holder of the policy of insurance in respect of which such act was done for any loss covered thereby, any legal defense available to the company is available to such agent.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § ill.]
    3. Insurance (§ 111) — Foreign Corporations — Civil Liability of Agents — Pleading.
    Under Rev. St. 1911, art. 4962, making agents for insurance companies which have not complied with the requirements of the laws of this state personally liable to policy holders, and article 4874, providing that a fire policy in case of a total loss by fire shall be considered a liquidated demand for the full amount, an agent when sued has the burden of negativing the loss asserted.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 111.]
    4. Insurance (§ 499) — Avoidance for Misrepresentation — Statutory Provisions.
    Under Rev. St. 1911, § 4874, providing that a fire insurance policy in case of a total loss shall be a liquidated demand against the company for the full amount thereof, and article 4948, providing that in suits on insurance policies no defense based upon misrepresentations made in the application or in obtaining or securing the contract shall be valid, unless defendant shall show that' within a reasonable time after discovering the falsity of the representations it gave notice that it refused to be bound by the policy, a policy for $4,000, where there was a total loss, was a liquidated demand for that amount, though the property-was worth only $1,000, where the insurance was not induced by any representation by insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1274; Dec. Dig. § 499.]
    5. Insurance (§ 111) — Foreign Corporations — Civil Liability of Agents —Defenses.
    Under Rev. St. 1911, art. 4962, making the agent of insurance companies which have not complied with the requirements of the laws of this state personally liable to policy holders, and article 4948, providing that no defense based upon misrepresentation in the application or in obtaining or securing any insurance contract shall be valid unless the insurer, within a reasonable time after discovering the falsity of the representation, shall give notice that it refuses to be bound by the contract, the agent is bound by the company’s failure to give such notice.
    [Ed. Note. — For other cases, see Insurance, Dec. Dig. § 111.]
    Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.
    Action by the White-Swearingen Realty Company against T. M. Drummond. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Bell & Bell, of Paducah, and Jas. H. Aynes-worth, of’ Childress, for appellant. Browne & Hawkins, of Paducah, and Fires, Decker & Clarke, of Quanah, for appellee.

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

       Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

The following statement of this cause is extracted substantially from the briefs of the litigants, supplemented by a consideration of the transcript, and was a suit by the appellee against the appellant, upon two policies of fire insurance, insuring appellee’s hotel property and furniture. The appellee alleged that the appellant, Drum-mond, acting as broker and agent, procured from the Franklin Fire Insurance Company of Wilmington, Del., the said policies of fire insurance and delivered the same to appellee in consideration of certain premiums paid by appellee, and that during the life of the policies the property insured was wholly destroyed by fire, and that proper proof of loss, as required in said policies, was made upon advice and with the assistance of the appellant, and transmitted to the insurance company, and demand for payment from the insurance company having been made and refused, the latter thereby became liable to pay the amount stipulated in said policies as a total loss. The Franklin Fire Insurance Company, as alleged in appellee’s petition, at the time of the issuance by it of the said fire insurance policies had not complied with the requirements of the laws of this state as to .the transaction of the business of writing fire insurance, and was not authorized under the law, as a foreign corporation, to transact an insurance business in this state. Ap-pellee further avers that the appellant, Drum-mond, solicited the insurance on behalf of said insurance company, and transmitted to the same an application by appellee for a policy of insurance in said company, and that appellant received from said insurance company the two policies in question, and delivered the same to the appellee, receiving from it the premiums therefor, transmitting the same to said insurance company, after deducting his commission, and that appellant after the fire prepared and assisted in preparing the proof of loss of said property to be presented to said company; that by virtue of such acts and agency for the insurance company, Drummond became indebted and liable to pay the sum of said policies. The appellant answered that the insurance was procured at the instance and reguest of the ap-pellee and as his agent, and not as the agent of the insurance company, and that appellee had full knowledge of the facts concerning said insurance and concerning said company, and, after such information had been imparted to it, then directed the appellant to procure the insurance, and in accordance with said instructions the appellant procured the same. The appellant also alleged a fraudulent overvaluation of the property by appellee in stating the value of the same at $4,000, which was the amount of insurance upon the property, when in fact the real value was less than $1,000, and that on account of the fraudulent representation and application for said insurance the policy was void, further alleging that if the issuance and delivery of the policies involved in this suit were illegal, the appellee was cognizant of the facts constituting the illegality of the same, and with such knowledge procured the appellant to obtain from the insurance company the policies in question, and “aided, abetted, and encouraged” the appellant in the violation of the laws of the state, and is estopped from claiming any loss against him. The trial court, after the submission of the evidence, peremptorily instructed the jury in favor of the appellee for the full amount of the insurance stipulated in the policies.

The appellee is attempting to impress liability upon appellant by virtue of the following articles of our Insurance Statutes, embodied in the Rev. St. 1911:

“Article 4961. Any person who solicits insurance on behalf of any insurance company, whether incorporated under the laws of this or any other state or foreign government; or who takes or transmits other than for himself any application for insurance or any policy of insurance to or from such company, or who advertises or otherwise gives notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk, or receive, or collect, or transmit any premium of insurance, or make or forward any diagram of any building or buildings, or do or perform any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company other than for himself, or who shall examine into, or adjust or aid in adjusting any loss for or on behalf of any such insurance company, whether any of such acts shall be done at the instance or request, or by the employment of such insurance company, or of or by any broker or other person, shall be held.to be the agent of the company for which the act is done, or the risk is taken, as far as relates to all the liabilities, duties, requirements and penalties set forth in this chapter.
“Art. 4962. Whenever any person shall do or perform within this state any of the acts mentioned in article 4961 for or on behalf of any insurance company therein referred to, such company shall be held to be doing business in this state, and shall be subject to the same taxes, state, county and municipal, as insurance companies that have been legally qualified and admitted to do business in this state. * * * ” And article 4962 further provides: “Any person who shall do any of the acts mentioned in article 4961 for or on behalf of any insurance company without such company has first complied with the requirements of the laws of this state, shall be personally liable to the holder of any policy of insurance in respect of which such act was done for any loss covered by the same.”
Article 4961, supra, of our Civil Statutes, as to the designation of acts constituting statutory insurance agents, is also in hsee verba a part of our Penal Code, viz., article 644, Revised Criminal Statutes 1911, and which, followed by article 645 of the Code, make the person, who performed the acts denominated in the statute of any insurance company failing in authority to do business in this state, subject to a considerable fine and imprisonment.
We conclude from the testimony of Mr. Drummond that he was engaged in ’ the insurance business, and as the proper representative of Texas companies had been insuring the property of the appellee, consisting of a bank building, a store building, a gin and a residence, and also “wrote the risk on the hotel at Swearingen in said companies,” and they instructed him to cancel the same; W. D. Hutchins, appellee’s agent, instructed him to write that insurance on the hotel property. When the regular licensed companies represented by him canceled the insurance upon the hotel property he informed Mr. Hutchins of that fact, and the latter questioned Drummond if he could get any other company to carry the insurance, and Drummond said: “I told him I would make an offer along that line.- * * * I then saw Mr. Jordan, and asked him to carry it after my company had refused, and he said his company would not carry it [meaning the hotel property]. I then saw Mr. Abernathy and one of his companies carried it for a year, and another one carried it for a little while, and then canceled it, and they refused to carry it any longer.” He said that Mr. Hutchins instructed him to write the policies in his company on the other property, that is, the bank building, the store building, the gin and the residence, and the policies were delivered to Hutcliins. He further testified, with reference to the refusal of the licensed companies doing business in this state insuring the hotel: “I was not able to get the hotel carried in any of the companies I knew in Texas. * * * X told Mr. I-Iutebins [the agent of appellee] I was unable to get a state company to carry the hotel property. I believe I told him of some literature I had gotten from a broker in Brooklyn, N. Y., and he was advertising mutual companies, but I did not mention the name of any particular company, I told him I might be able to get that broker to carry it, and he said: ‘Well, I suppose that would beat no insurance at all. You see if you can’t get a policy through this mutual company’ — and I did it. (We do not mean to state that it is an undisputed fact that these particular policies were in a mutual company.) I didn’t know what company this man, the Brooklyn broker, was representing. I told Mr. Hutchins that I knew nothing of this company; that he knew just as much about it as I did. Yes, sir; I wrote the broker for insurance, and he sent me a policy, and I sent it over to Mr. Hutchins.” Drum-mond had never represented the Franklin Fire Insurance Company in any manner pri- or to this time. The policy was not executed by him as agent but as a result of communications with the Brooklyn broker. They were executed by the officers at the home office, and directly forwarded to Drummond, who delivered the same to the appellee. Drummond further said: “The White-Swear-ingen Realty Company didn’t pay me anything other than the premium therein specified. * * * I think I received 25 per cent, of the premium. * * * Fifteen per cent, is as much as any of my companies will pay.” The first letter in answer to Drum-mond’s communication in regard to the insurance authorized this deduction of the commission. “The policies I wrote that were good I represented the insurance company, * * * but when I wrote this other policy I didn’t write the insurance companies for I had exhausted my means of getting insurance and had to go to this one. I have never paid $25 to the Commissioner of Insurance and Banking for the purpose of writing insurance in foreign companies not authorized to do business in this state. I have never filed a bond in the sum of $1,000 payable to the Governor, so I could write that kind of insurance. * * * After the fire I prepared the proof of loss for the company at Mr. White’s request and did that to comply with the terms of the policy. * * * ”
It seems that Mr. White, an officer of the company, had some communication with Mr. Drummond, with reference to the insurance In this manner, continuing to quote from Drummond’s testimony: “In the summer of 1912, Mr. White had the policies sent down to him at Weatherford and wrote me to that effect. T-didn’t tell Mr. White or Swearingen that the Franklin Fire insurance CÍompany was authorized to do business in Texas. I didn’t tell them it was not authorized to do business in Texas. White-Swearingen Realty Company had sufficient notice through their agent as to the class of insurance they were getting. They had possession of this policy that had expired. Mr. White wrote me a letter to renew it, and I did so at his request and wrote him at the time that it was a mutual policy. Q. You told Hutchins, didn’t you, that this company did not have authority to do business in Texas? A. That was the understanding between me and him. Q. You told him that?. A. I told him it was an Eastern broker. I told him that the insurance would be procured through an Eastern broker. * * * Q. Did you tell him that the company you were writing that in was not authorized to do business'in Texas? A. No, sir; I do not suppose I did; but I do not presume they were, or they would have had a representative in Texas. Q. You won’t tell this jury that you told Mr. Hutch-ins that this company was not authorized to do business in Texas, will you? A. I do not know that I told it in those words, but I told him that the policy would be issued through an Eastern broker. Q. You have plead here that you told Mr. Hutchins, agent of White-Swearingen Realty Company, that this company was not authorized to do business in Texas ? A. That was my understanding. Q. You say that you told Hutchins that? It is a fact you did tell him or you didn’t. A. According to the best of my recollection, I told him that it was authorized to do business in Texas. Q. Was that when you told him you were going to get a mutual company? A. Yes, sir. Q. You didn’t know what company it was going to be in * * * when you told him you were going to issue through an Eastern broker. A. No, sir. Hutchins was willing to take chances in an Eastern company. * * * I didn’t tell Hutchins at the time I delivered him this policy that the company was insolvent.”
It is shown that the Brooklyn broker, Anthony, had correspondence with no other person than Drummond in regard to appel-lee’s insurance, and in a letter written to Paducah Land Company (Drummond) dated May 14, 1912, the broker acknowledges the receipt of an application of insurance for $2,375 (in reality addressed to another brokerage company, and forwarded to Anthony), and says: “At any time you want $2,375.00 more insurance on the same risk, please' forward the application. You will observe a clause regarding a reinsurance of this policy and for that reason I ask you to deliver the same promptly, collect for the same on delivery, and remit this office New York draft as the company has to pay cash for reinsurance.” The additional insurance for the additional amount, $2,375 was written, and the policy delivered by Anthony to Drummond, executed by the same company, with a permission to Drummond to deduct the 25 per cent, commission. Drummond said: “In none of the letters I had from Anthony, he never told me that the company was not authorized to do business in Texas. * * * At the time I handed Mr. Hutchins his Franklin policies, he knew as much about it as I did and I could not say whether I told him it was not authorized to do business in Texas.”

The appellant advances the proposition under its first assignment that: “There being an issue of fact as to whether defendant was acting as the agent of the plaintiff in the procuring of the policies, and there being the issue of fact as to whether the plaintiff had full and complete knowledge of each and every fact concerning the insurance company and the conditions of the policies, it was error for the court to withdraw the case from the consideration of the jury,” and cites the following cases in support of the proposition: Vertrees v. Head & Matthews, 138 Ky. 83, 127 S. W. 523; McBride v. Rinard, 172 Pa. 542, 33 Atl. 750; Webster v. Ferguson, 94 Minn. 86, 102 N. W. 213; Hartman v. Hollowell, 126 Iowa, 643, 102 N. W. 524.

We believe that a close reading of the case of Vertrees v. Head & Matthews, supra, by the Kentucky court, exhibits an inapplicability to the case here. It is true that the acts within the Kentucky statute, constituting the person manifesting such acts a statutory agent of the insurance corporation are similar, and in some respects the same as in our statute stamping agency, although the acts are not so many; however, the purpose seems to make the person who performs such acts an agent, “anything in the policy to the contrary notwithstanding,” and it is noted there was no statute in Kentucky making such statutory agent liable as in our state, on account of performing any of the acts mentioned in the statute, for a company which has not complied with the laws of the state; and the court, in deciding that it was a jury question, rather solved the case by holding that if the insurance agents between the company and Vertrees “acted merely as an accommodation to him, and told him that they were not agents for the company, and it had no authority to do business in this state, and they had no knowledge of its condition or standing, then Vertrees did not innocently or in ignorance of the true state of facts accept the policy, and must be held to have assumed the risk of the solvency of the company and its liability to discharge the agreements under its contracts. * * * If the transaction was in violation of the statute, he was knowingly a party to it, and so cannot hold the agents personally responsible.” In violation of what statute?

Kentucky had a statute providing that an agent “who acts without a license shall be guilty of a misdemeanor and subject to a fine,” but did not have a statute making any person liable to the insured if he violated such a law requiring him to procure such a license, and this necessarily is the penal liability referred to in the opinion, when the court states that Head & Matthews may be 1L able criminally, although not liable civilly to Vertrees, and upon the matter of agency the court is apparently illogical, when it says, “The language of the sections * * * quoted is broad enough to make Head & Matthews agents upon their admission that they transmitted the application for Vertrees to the company,” for the reason that unless it was intended to hold that statutory agency was not, and could not be, a predicate of liability, the declaration of statutory agency was unnecessary, which was more likely, as the instructions written by that court, for the government of the trial court guiding it in the submission of the matter to the jury, did not embody the statutory elements as ingredients of agency, but such instructions were based entirely upon agency in fact at common Taw. In this character of case it is not so much a question of agency in fact at common law, as one, Are the acts performed by the persons such as to come within the spirit and meaning of the statute as to constitute a statutory agency? Are they stamped by the statute sufficiently as that the liability would follow? The cause of Webster v. Ferguson, 94 Minn. 90, 102 N. W. 214, by the Supreme Court of Minnesota, had under consideration the .following sections of the Code of that state:

“Sec. 25. Any person who solicits insurance and procures the application therefor shall be held to be the agent of the party thereafter issuing the policy upon such application or a renewal thereof, anything in the application or the policy to the contrary notwithstanding.”
“Sec. 87. An insurance agent shall be personally liable on all contracts of insurance unlawfully made by or through him directly or indirectly for or in behalf of any company nor authorized to do business in this state.”

It is noted that under the Minnesota statute, section 25, that the person who solicits the insurance and procures the application is held to be the agent of the party issuing the policy upon such application, notwithstanding a contrary stipulation, and the insertion of such stipulation is often the practice of insurance companies in attempting to “shed” responsibility for the acts of their own agents actually employed and represented by them-; and the court, in construing section 87, making an insurance agent personally liable on contracts of insurance unlawfully made by or through him, in connection, we presume, with the other statute, said that the liability, “grows out of the contractual relation of the parties, and can be enforced only by the insured, who has been made a victim in accepting unlawful, insurance.” In this case there was quite a vigorous dissenting opinion, both upon the facts and upon the , law, the latter necessarily based upon the facts, and in the construction of section 25 of the act, the dissenting judge saying that “to hold that respondent was not the agent of the insurance companies, hut, on the other hand, the representative of appellants, and therefore not liable, will, in my opinion, open the door in Minnesota to the transaction of insurance business by such companies, and furnish them an easy method of violating its public policy as expressed by the Legislature”; and he previously had said: ‘.‘The purpose of the Legislature in enacting section 87 was to protect the public from the evil results incident to the writing of insurance throughout the state by so-called ‘wildcat’ companies, and the provision mating the agent negotiating such unauthorized insurance liable upon the contract negotiated was intended to operate as a check against the increase of such business.” The majority of the court in Webster v. Ferguson, reversed and rendered that cause in favor of the insurance agent upon the evidence.

The Supreme Court of Iowa, in the cause of Hartman & Daniels v. Hollowell, supra, had under consideration section 1749 of its Code, which is substantially in the same language as section 25, supra, quoted from the Supreme Court of Minnesota, and was a case where the insured was suing the agent for soliciting insurance in a nonlicensed company, without any statute impressing personal liability upon the agent, similar to the Kentucky case in that respect However, under another section of the Code of that state, an agent was prohibited from acting for insurance companies in transacting business of insurance in the state without his procuring from the auditor of the state a certificate that such company had complied with the law, and under another section if he acts with knowledge that such company “is doing business in an unlawful manner, or is insolvent, or solicits insurance with said company or association,” etc., he is guilty of a misdemeanor. The judgment of the trial court and the verdict of the jury were affirmed in this case by the Supreme Court of Iowa, which said that: “The defendant does not pretend to have supposed these companies were authorized to do business in the state, and his only apology to relieve him from the charge of negligence is that he acted at the instance of the plaintiffs in obtaining insurance from companies neither knew anything about. But whether he did so was an issue for the jury to determine.” This same Supreme Court, 17 years previously, in the case of Insurance Co. v. Sharer, 76 Iowa, 286, 41 N. W. 20, construing the same article, 1749, upon a state of facts indicated by the quotation said: “Now, while Giberson did not solicit the insurance in the sense of having importuned defendants to apply for it, he did procure the application within the meaning of the statute; for he received it, and at his request the policy was issued upon it. To hold otherwise would be to put an exceedingly narrow construction upon the words of the enactment, and one which in many eases would defeat the manifest legislative intent. The manner in which such business is transacted is known to all men. Prudent business men and property owners do not wait to be personally solicit- or,” but “their custom is to apply to the agent of some company or association engaged in the business of insurance; and, if the agent is a mere solicitor, their application is forwarded to some agent or officer having authority to accept or reject it. The statute was as certainly intended to apply to transactions of that land as to those in which the agent procured the application by personal solicitation, and that was the character of the transaction in question. We conclude, therefore, that Giberson was the agent of plaintiff in the transaction.”

The right of the exclusion of foreign corporations (without noting exceptions), including insurance corporations, is one of the most important unsurrendered powers of a state government. The absolute right to exclude carries the necessary correlative right of admission upon conditions which must be complied with. Commonwealth v. Nutting, 175 Mass. 154, 55 N. E. 895, 78 Am. St. Rep. 483; Hooker v. State of California, 155 U. S. 649, 15 Sup. Ct. 207, 39 L. Ed. 297; Taber v. Building & Loan Association, 91 Tex. 92, 40 S. W. 954. The suppression of a violation of such laws by indirection, and preventing the entrance of foreign corporations, except upon conditions, in this instance accepting applications for insurance through persons in this state, thereby doing the thing which the statute inhibits, is the important ingredient of public policy assisting the interpretation of the statutes quoted. See authorities cited.

The cause of Hooker v. the State of California, by the Supreme Court of the United States, affirming the decision of the Supreme Court of California, was one involving the conviction of an insurance agent for “procuring or agreeing to procure” maritime insurance with a foreign company which had failed to comply with the law requiring such companies to file a certain bond before transacting insurance business within that state, which is also a prerequisite in Texas in regard to such insurance companies. Article 4870, R. S. 1911. It was urged in that case that the conviction was illegal because the statute undertook to forbid the procurement of contracts outside of the state; and the same question substantially was involved in the ease of Commonwealth v. Nutting, decided by the Massachusetts Supreme Court, supra. The facts here are not the same involved in the two cases mentioned, and we admit the analogy is remote as bearing upon the facts as to the civil liability of Drum-mond, except that the underlying reasons of the statutes relating to insurance, and the court’s avoidance of a construction of the same retarding the purposes for which they were enacted, are so aptly put, as to suggest quotations. In the United States Supreme Court Case the position was advanced that the broker, “who agrees to procure any insurance for a resident” of the state of California, was the agent of such resident in procuring the same; and hence the contract of insurance having been procured by the agent of the insured, and the foreign corporation not having complied with the state law, such corporation could not be legally within the state for the purpose of giving its assent to the contract, further urging that the contract of insurance, according to this theory, was in reality consummated without the state between the resident, through its own agent, and the foreign corporation, and that because a foreign contract could not be condemned by state law, there was no violation of said law. Mr. Justice White said: “If the contention of the plaintiff in error were admitted, the established authority of the state to prevent a foreign corporation from carrying on business within its limits, either absolutely or except upon certain conditions, would be destroyed. It would, be only necessary for such a corporation to have an understanding mth a resident that, in the effecting of contracts between itself and other residents of the state, he should be considered the agent of the insured persons, and not of the company. This would make the exercise of a substantial and valuable power by a state government depend, not on the actual facts of the transactions over which it lawfully seeks to extend its control, but upon the disposition of a corporation to resort to a mere subterfuge in order to evade obligations properly imposed upon it. Public policy forbids a construction of law which leads to such a result, unless legally unavoidable.” (The emphasis is ours). In the case of Commonwealth v. Nutting, supra, decided by Chief Justice Holmes, where an insurance agent was convicted for aiding in the transaction of insurance with a company which had not been admitted to do business in the state of Massachusetts, it was said: “One main object in imposing such conditions in this commonwealth is to secure people against fraudulent or worthless contracts, and, in case of litigation, to save them from having to go abroad.”

As stated, the public policy involved is the prevention of the violation of the state law, and the suppression of the character of insurance indicated which may be solicited from the residents of a state by irresponsible companies who have not the assets, or if they have the resources, have not the inclination, to yield to the law of the state on a parity with state companies and foreign companies who do comply. The protection of its citizens against contracts difficult and expensive to enforce, if enforceable, made by foreign corporations, sheltered in a foreign jurisdiction, with no assets in this state to meet its obligations, is necessarily an important object. Insurance is almost in the nature of a tax, though not compulsory, and the foreign corporation should give assurance that it will pay its policy holders and be placed upon an equality with other insurance companies as to the maintenance of government; without enforcement of some law of this character such insurance companies would, in a sense, be protected against those who do comply with the law — the latter could not give the rates accorded by the former, and the plane of competition would not be equal, as the burdens of each are diverse, and the consequences to the citizens and government are such as to cause the substantial and proper enforcement of such laws to become a wholesome object. We will admit that the interpretation of statutes of this character could become unreasonable to the extent that, within the letter of the law, if A. has B., his agent or employs, to perform the acts designated in the statute, to transmit the application for insurance, or a policy, or transmit the premium, or make and-forward a diagram of the principal’s buildings, etc., to some insurance company, and to hold such an agent or employs liable, it would be in such violation of the spirit of the statute as not to be within its letter, although so designated. It would be like, as cited by Blackstone, attempting to include a surgeon, who opened the vein of a person that fell in the street with a fit, as liable under the Bolognian statute, which enacted “that whoever drew blood in the streets should be punished with the utmost severity.” Blackstone, Com., vol. 1, p. 40.

However, when we apply the statute to one who is engaged, like Drummond, in the business of insurance in this state, we think a different reason and a different policy prevails. This class of persons is sought as intermediaries, whether by the insured or the insurer, as the purveyors of insurance, and, to say the least of it, such persons are the subjects, who may, by conducting the negotiations between the parties, advance a violation of the statute instead of retarding the same; and, as was well said by Chief Justice Holmes, in the Nutting Case, supra, adopted by the Supreme Court of the United States with approval, in the same case (183 U. S. 553, 22 Sup. Ct. 238, 46 L. Ed. 324, when the Nutting Case was before that tribunal), and in the case of Delamater v. South Dakota, 205 U. S. 103, 27 Sup. Ct. 450, 51 L. Ed. 731, 10 Ann. Cas. 733. "While the Legislature cannot impair the freedom of McKie [the insured] to elect with whom he will contract, it can prevent the foreign insurers from sheltering themselves under his freedom . in order to solicit contracts which otherwise he would not have thought, of making. It may prohibit not only agents of insurers, but also brolcers, from soliciting or intermeddling in such insurance, for the same reasons." (The emphasis is ours.)

Our statute is quite stringent, and leaves very little to construction. Reverting to article 4961, designating tlie acts constituting the person performing the same as the agent of the insurance company, it not only embraces the acts designated in all other statutes we have investigated, but if such person performs or does “any other act or thing in the making or consummating of any contract of insurance for or with any such insurance company other than for himself, * * * %ohether any of such acts shall he done at the instance or request, or by the employment of such insurance company, or of or by aivy broker or other person." (The emphasis is ours.)

In the case of Woolwine v. Mason, 157 S. W. 682, the Supreme Court of Tennessee, in construing a statute very similar to ours, and containing the same language we embrace in quotations, held that the defense here interposed was unavailable, reversing and rendering the cause in favor of the insured. Tennessee also by a section of its Code made the agent or person personally liable on contracts of insurance unlawfully made by or through him, directly or indirectly for or in behalf of any insurance company not authorized to do business in that state. The court said: “There is no escape from the meaning of this language. It must be conceded that these contracts of insurance procured for complainant by the defendants were unlawfully procured by defendants. Under the language of the statute, it makes no difference that the policies were obtained indirectly through another firm of insurance men at Chicago. * * * We think it can make no difference that complainant knew of this violation of the law by defendants. His knowledge did not make their act legal, or excuse them from the statutory penalty visited upon such dereliction. The provisions of the statute are directed against companies and insurance agents, not against policy holders. The act is remedial in its nature, and was designed for the protection of the public. * * * The agent is liable as if he were the insurer — as if he individually had written the policy. There can be no question upon this record that, viewed as an insurer, upon these several policies, defendants are liable to the complainant for the loss sustained." Also see Lathan Mercantile & Commercial. Co. v. Harrod et al., 71 Kan. 565, 81 Pac. 214, by the Supreme Court of Kansas; Morton v. Hart, 88 Tenn. 427, 12 S. W. 1026, by Chief Justice Turney.

We are unable to appreciate the distinction made in some of the decisions, as applicable to our particular statute, contended for by appellant, that the criminal liability may be imposed if the acts designated in the statute are performed, though the civil liability as applied to the same facts, would not exist, as to the question of agency. The civil statute defining who is an agent as one who does the things designated by the statute for a nonresident insurance company which has failed to comply with the law, followed by the article making such persons civilly liable, is the same statute and the same agency, based upon the same dereliction of the corporation which makes him criminally liable. The logic evidently is that if the person is an agent of the insured at common law, but if he performs the acts designated by the statute, he may be such an agent as could be prosecuted, but could not be held liable to the assured. We believe the purpose of the statute has a wider scope; it in reality makes the class aimed at, in order to suppress the evil, the insurer. The relative position of the agent, standing in the shoes of the insurance company, where the question is considered by the decisions, stamps the status of the agent as the insurer. The primary purpose of the law could never be solved if you interpolate into the statute common-law agency, if the agent in reality performed the acts designated in the statute, for the reason that it would conflict with the act to that extent, and all that would have to be done under such an interpretation to defeat the strong purpose of the law, as Justice White said in the Hooper Case, supra, would he to have an “understanding.” The ordinary manner of procuring insurance by the insured is to consult insurance agents, as was done in this case. The insurance agent informs the seeker of insurance that it is understood he will represent the latter solely as his agent, and if he procures insurance out of the state from a company which has not complied with the law, the insured must take his chances. However, we do not think these parties are in pari delicto under the statute. The law contemplates actual conditions, as much so in a matter of this kind as in usury statutes, while the conditions may not be as impelling upon the insured as upon the borrower. The ordinary man would go as directly to his home insurance agent in trouble over his insurance, as he would to his home banker in financial difficulty.

In Smith v. State, 18 Tex. App. 71, where the convicted insurance agent had violated the same law, Judge Hurt said: “It was the intent and express purpose of * * * the act to make all persons committing any of the acts therein named, agents, whether in fact they were so or not.”

In the case of Cain v. State, by the Supreme Court of Mississippi, 60 South. 732, a statute was under consideration with reference to the acts to be performed, the same as our statute; and the facts relevant to agency committed by the agents convicted in that case were, we think, identically the same as Drummond contends were committed by him in this case, and the court said, ruling out the question of common-law agency; “The object of the statute was to keep wildcat companies, or companies not complying with the law, from doing business in the state; and to that end, all persons acting as intermediaries for such companies, whether directly or through circuitous routes, were made liable” to punishment. Also see Maryland Casualty Co. v. Gaffney Mfg. Co., 76 S. E. 1090, where the Supreme Court of South Carolina declared a local agent, who “brokered” through another agent an insurance policy, a statutory agent, under a statute identical with ours as to “acts.”

Alabama in 1893 had a statute (section 1205) very similar to ours, and the same was under consideration by the Supreme Court of Alabama in the case of Noble & Ware v. Mitchell, 100 Ala. 519, 14 South. 581, 25 L. R. A. 241, a suit by the insured against the agent for transmitting a premium and a policy of insurance, and the facts on the question of statutory agency were quite similar to the facts here. A close reading of the opinion, in connection with the special charges requested by the agent and refused by the trial court, is authority on the issue of statutory agency in favor of the affirmance of this case. The question really submitted was, Did the insurance agent who procured the policy really perform the acts designated by the statute? Which, of course, if disputed should be an issue to a jury in any case. It was not submitted whether his acts amounted to real agency for the insurance company. The trial court told the jury, if the defendant transmitted the premium or the policy, “he is an agent although in point of fact he has no connection with the company,” and the appellate court said, “It is the acting as agent for such a company (nonlicensed) that constitutes the ‘offense’ which is the foundation of the suit,” and a consideration of the opinion clearly shows that the “acting as agent for the company” was constituted by the acts designated in the statute, though the agent did not have any direct dealing with the company.

As stated, the real testimony in this cause is that neither party knew anything in regard to the solvency or insolvency of the insurance company at the time the policies were delivered. The record does present the anomaly of Hutchins (who, as a jury question, we assume was the agent of the plaintiff in the negotiations with Drummond) testifying that Drummond informed him that the company did not have authority to do business in Texas and the defendant himself swearing that to the best of his recollection he informed Hutchins that the insurance company, did have authority to do business in the state; we are not quite prepared to say that Drum-mond’s testimony is a judicial admission and binding upon him as to this matter, as' contended by appellee, in the face of the contradictory testimony of his own witness, though we admit, where such statements are conflicting and the other evidence does not illuminate the real truth of the fact, that it is a peculiar position to place a jury and court, in ascertaining the truth, that litigant’s admission, though from recollection, if against his own interest, is to be overborne by the statement of his witness. This character of testimony appellant contends places the parties in pari, delicto. We doubt its sufficiency, without expressly deciding it, but believe that the measure of the statute with reference to liability is otherwise fulfilled upon the authorities and reasons given.

Appellant also contends that the court erred in failing to submit the issue of overvaluation and false representation as to the hotel to the jury. Article 4874, R. S. 1911, prescribes that: “A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy; provided, that the provisions of this article shall not apply to personal property.” Article 4948, R. S. 1911, prescribes: “In all suits brought upon insurance contracts or policies hereafter issued or contracted for in this state, no defense based upon misrepresentations made in 1;he applications for, or in obtaining or securing the said contract, shall be valid, unless the defendant shall show on the trial that, within a reasonable time after discovering the falsity of the representations so made, it gave notice to the assured, if-living, or, if dead, to the owners or beneficiaries of said contract, that it refused to be bound by the contract or policy; provided, that ninety days shall be a reasonable time.”

In this case the proof of loss was a total loss. “A valued policy is one in which the sum to be paid as an indemnity in case of loss is fixed by the terms of the contract.” May on Insurance, vol. 1, § 30. The loss, as a matter of indemnity, is fixed in our state by the terms of the statute, and becomes the terms of the contract. The contract is necessarily alive, for, if dead, the plaintiff could not recover the loss. It is remembered that our statute says that the agent shall be personally liable to the holder of the policy for any loss covered by the same. We are inclined to think that as between the agent and the insured the same criterion as to the loss under the contract is existent as between the insured and the company, and we necessarily have to revert to the proposition, What is the loss as between the latter in measuring the indemnity between the former? We think any legal defense available to the insurance company, affecting the loss or destroying the policy, is available to the defendant, because the statute makes the contract embrace, or cover, the loss,, and it is that loss the agent is liable for; and if a defense of the insurance company would destroy the same, the agent is immune because the company would be. It logically follows that if it is the company’s defense, which the agent uses as a destruction of the loss, covered by the policy, the burden is upon him, as upon the company, to negative the loss; this is fair to the insured, and is all’ tlie agent could require; otherwise the scope • of the agent’s defense would be broader than that of the insurer, and the loss to the insured would not be that loss covered by the policy, and which, if the company could he made to pay, would be recoverable against it.

If a suit against the agent was referable to a policy embracing personalty entirely, and the policy provided that the same should be void if misrepresentations were made to the company in the-proofs of loss by the insured, certainly the policy would not be void under article 4949, covering that subject, unless the representations were such as characterized by that article, making them avaiL able as a defense to the company, and the loss in that character of case covered by the policy would be the loss proven.

The answer, for the purpose of preventing a recovery of the loss, based upon fraudulent valuation, has the imperfections of a lack of allegation that any statements as to the value were made to the company, and that the company was misled, or induced to issue the policy, on account of any such statement. The plea does state that the procuring of the insurance for $4,000, when the hotel and lots were of the value of $1,000, “was a fraud upon the insurance company.” The procuring of insurance for $4,000, when the lots were not of the value of $1,000, unless the insurance company acted upon the statement of the insured as to the value, and was induced to write the same on account of the representation, would not be a fraud upon the insurance company. The mere fact that the property is not worth $1,000, and the insured knows it, added to the circumstance that the company writes a policy, for $4,000 and does not know the value of the property, or, if it did, was not induced to write the policy upon that account, is not a fraud upon the company; the policy continues to be a liquidated demand. We seriously doubt if this pleading would be sufficient to destroy an ordinary contract on account of fraud. Our statute says (section 4948, supra) that no defense based upon misrepresentation “in securing the contract'” shall be valid unless the insurance company shall show that, within 90 days after discovering the falsity of the representations so made, it gave notice to the insured that it refused to be bound by the policy. If this defense is not available, the loss is existent and continues to be covered by the contract. The defendant is bound by the company’s omissions under this statute, as it affects the policy and the loss covered by the same. If the company failed to discover the falsity of the representations, the agent fails to plead it, 'or if the company ever discovered the same and sent the notice required by law, there is likewise a failure in pleading.

If we are correct in our exposition of the statute with reference to agency, it is undisputed in this case, without more, that the agent transmitted the application, delivered the policies from the Fi-anklin Insurance Company to the plaintiff, and received from plaintiff the premium and transmitted the same to the company.

We order an affirmance of the judgment.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    ZAVALA LAND & WATER CO. v. TOLBERT.

    (Court of Civil Appeals of Texas.
    Feb. 28, 1914.
    Rehearing Denied March 28, 1914.)
    1. Venue (§ 82) — Change oe Venue — Plea oe Privilege — Waivee.
    Where, in an action for fraud inducing plaintiff to purchase certain land, defendant filed a cross-petition seeking affirmative relief, it- thereby waived its plea of privilege to be sued in the county of its domicile.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 47-50; Dee. Dig. § 32.]
    2. Evidence (§ 461)— Parol Evidence — Written Contract — Explanation.
    Where a written contract for the sale of land provided, “It is agreed to bore on land above-described 10% in. casing, guaranteeing water and draw on [plaintiff] for total cost of well when completed,” parol evidence was admissible to show the situation of the parties, to determine whether it was intended by such clause that defendant should guarantee sufficient water to irrigate the land sold.
    [Ed. Note. — For other cases, see Evidence, •Cent. Dig. §§ 2129-2183; Dec. Dig. § 461.]
    3. Witnesses (§ 282) — Cross-Examination —Leading Questions.
    Where a witness is called for plaintiff, defendant may propound leading questions to him though the witness was not examined in chief as to the matter made the subject of the questions.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 927, 989; Dec. Dig. § 282.]
    4. Evidence (§ 142) — Fraud — Damages — Sales of Similar Lands.
    In an action for alleged fraud in the sale of land, resulting from defendant’s failure to furnish water, evidence for plaintiff .that before or at the time of the purchase of the land, plaintiff was negotiating with defendant for the purchase of an additional 40 acres, and that in his original petition he sued for damages because of defendant’s refusal to permit him to purchase the additional land, but when the water failed he would not have taken it at any price, was inadmissible.
    '[Ed. “Note. — For other cases, see Evidence, Cent. Dig. §§ 416-423; Dec. Dig. § 142.]
    5. Appeal and Error (§ 1050) — Rulings on Evidence — Prejudice.
    In an action for fraud in the sale of land, the admission of evidence by plaintiff that at the time of the purchase he desired to purchase an additional 40 acres, and in his original petition sued for defendant’s refusal to permit him to purchase the additional land, but when the water failed he did not want the land at any price, was not ground for reversal of a judgment against defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153^157, 4166; Dec. Dig. § 1050.]
    6. Fraud (§ 57) — Sale of Land — Damages.
    Where, in an action for fraud in the sale of land, plaintiff claimed that, by reason of the failure of the water in a well driven for irrigation, the land was practically worthless, defendant was entitled to prove, as bearing on the issue of damages, on cross-examination of one of plaintiff’s witnesses, that witness had sold a 40-acre tract similar to plaintiff’s and situated near it, for about $100 per acre.
    [Ed. Note. — For other cases, see Fraud, Cent. Dig. § 54; Dec. Dig. § 57.]
    7. Trial (§ 191) — Instructions — Assumed Facts.
    In an action for fraud in the sale of land, an instruction that, if at the time plaintiff contracted to buy the land, he informed defendant’s agents that he was making a contract with the intention of taking immediate possession and making a crop during 1912, and defendant unreasonably delayed the boring of a well that would produce a supply of water sufficient for irrigation for the purposes for which plaintiff, within defendant’s knowledge, purchased the land, and that plaintiff was thereby prevented from making the crop, and was caused to lose time during the year 1912 for himself, his son, and teams, the jury should find for plaintiff the reasonable value of his loss, etc., was erroneous as assuming that defendant by its contract had contracted to bore a well on the land that would produce water sufficient for irrigation, which was a contested issue in the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 420-431, 435; Dec. .Dig. § 191.]
    8. Fraud (§ 20*) — Misrepresentations.
    Where notwithstanding the representations of defendant’s agents, made to induce plaintiff to buy land, that sufficient water could be obtained from wells to irrigate the land, such agents refused to guarantee or commit defendant, by the terms of the written contract of sale, to the proposition that a sufficient supply of water could be procured for irrigation purposes, and plaintiff, before he made the contract to purchase, went on the land to investigate, and saw irrigation wells on lands that had been sold to others in the vicinity, etc., the failure of the well installed on plaintiff’s land to furnish sufficient water for irrigation, and defendant’s inability to produce a well with sufficient water for that purpose, did not constitute actionable fraud..
    '[Ed. Note. — For other cases, see- Fraud, Cent. Dig. §§ 17, 18; Dec. Dig. § 20.]
    Appeal from District Court, Hill County; A. P. Dohoney, Judge.
    Action by R. L. Tolbert against the Zava-la Land & Water Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Dinsmore, McMahan & Dinsmore, of Greenville, for appellant. Thompson & Thompson, of Greenville, for appellee.

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

       Application tor writ of error pending in Supreme Court.

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

   TALBOT, J.

The appellee, Tolbert, sued the appellant, Zavala Land & Water Company in the district court of Hunt county, Tex. The original petition appears to have been filed on March 23, 1912. On May 21, 1912, in due order of pleading, the defendant filed its plea of privilege to be sued in Zava-la county, where it had its domicile, or in Bexar county, where it was alleged it had an office and agent for the transaction of its business. On February 13, 1913, plaintiff filed an amended petition, in which it is alleged, in substance: That plaintiff resided in Zavala county, Tex.; that on or about the 17th day of January, 1912, and for some time prior thereto, the defendant, among other things, was engaged in promoting and developing a town site known as La Pryor in said Zavala county, that pursuant to this end defendant had platted a large body of land in and around said town into lots and blocks, and through its agents and published literature was offering for sale, and was selling, said lands. That by the contract of sale, declared on in the original petition, defendant was obligated to sink a well upon the land sold, and guaranteed a supply of water therein sufficient for the purposes of irrigation ; that the section of the state wherein said land is located is arid, and that the rainfall is wholly insufficient for the purposes of growing the usual crops. That the clause of the contract by which defendant obligated himself to sink said well is as follows: “It is agreed to bore on land above described 10% in. casing, guaranteeing water, and draw on R. L. Tolbert for total cost of well when completed.” That this provision in the contract was intended to mean, and did in fact mean, a supply of water from the well to be sunk on said land sufficient in quantity to irrigate the 40 acres of land purchased. That the matter of a water supply sufficient for purposes of irrigation was a material consideration with plaintiff in the purchase of said land, and the value of said land is almost wholly dependent on such supply of water. That defendant failed to deliver deed and abstract of title to plaintiff within the time agreed upon, and did not do so until about March 15, 1912, and failed and refused to sink a well upon the land until about May 15, 1912, and that the well was not of the kind provided for in the contract. That the well which appellant sunk on the land does not afford a supply of water sufficient to irrigate, but is worthless for such use. That at the time said contract was made defendant knew that water sufficient for purposes of irrigation could not be obtained upon said land, and at said time did not intend to supply such well, but of these facts plaintiff was not then informed, and wholly relied upon defendant’s representations. In this petition plaintiff claimed damages for loss in value of the 40 acres of land, loss of plaintiff’s time, and loss of time by plaintiff’s sons, and loss of time for teams, and loss of machinery which the plaintiff purchased to test the well, and loss upon labor employed to test the well, aggregating damages in the sum of $5,900. On February 25, 1913, the defendant filed its original answer,. which consisted of general demurrer and special exceptions, a general denial, and special pleas, wherein defendant alleges that it performed its obligations under the contract of sale, and furnished a deed of conveyance and abstract of title within reasonable and proper time, and that plaintiff accepted a deed and abstract and went upon the land and took possession thereof under the deed, whereby he was estopped from claiming any damages by reason of delay in delivering deed and abstract of title, and alleging that defendant bored upon the said land a better well than the well stipulated in the contract,- and that it was plain tiff’s duty under the contract to test the well, and that plaintiff had willfully failed to properly test the well. And in connection with this answer, but in a separate count, the defendant, by cross-bill, sought to recover of the plaintiff $635, the alleged stipulated price for digging the well mentioned. By his first supplemental petition plaintiff alleged, among other things, that defendant represented to plaintiff that there was an unfailing supply of water to be had upon the land sold plaintiff, by boring a well thereon amply sufficient for purposes of irrigation for all of the said tract of land, “and in its written contract, and in and through its verbal representations and agreement, it was to furnish a well upon said land of the kind therein mentioned; that the well provided by defendant affords no water sufficient to irrigate any land whatever, and same is wholly worthless for the •purposes for which same was contracted, or for any other purpose for which same could be used upon said land.” On February 25, 1913, defendant’s general demurrer and all its special exceptions to plaintiff’s petition, except the fifth special exception, were overruled. Its fifth special exception was sustained, and plaintiff filed a trial amendment, making the following allegations: “That at the time said contract was made defendant had subdivided a large tract of land in Zavala county into smaller tracts, and through its said agents was engaged in exploiting, advertising, and selling said land in Hunt county and elsewhere as an irrigation proposition. That in the clause of said contract providing for the boring of a well upon said land, defendant, at the time, place, and under the circumstances surrounding, intended to represent and declare, and in fact did represent and declare, to plaintiff that by sinking a well upon said land of the dimensions stated and to a depth of not more than 200 feet, that water sufficient in quantity would thereby be procured to irrigate all crops that might be grown upon said 40 acres of land, and the defendant bound and obligated itself by said contract to provide such well. Defendant at said time, by oral statements and representations made to plaintiff, and by printed statements, cuts, and pictures placed in plaintiff’s hands, did further declare to and covenant with plaintiff to provide for him upon said land a well of the kind mentioned, and that said well would and should furnish water in sufficient quantity to irrigate all crops that might be grown upon said 40 acres of land. That plaintiff relied upon said representations of defendant, and was induced thereby to purchase said land, and but for the same he would not have made the said purchase. That at the time defendant and its said agents knew full well that water sufficient for purposes of irrigation could not be obtained upon said land, but of tins plaintiff was wholly ignorant, and trusted and relied upon the said representations of defendant. That in making the payment set out in said contract, and in executing and delivering his said notes to defendant, plaintiff trusted and relied upon said representations of defendant fraudulently and deceitfully made to plaintiff to induce him to make said contract, and to pay the money and execute the notes therein mentioned. That plaintiff at the time had no notice of such fraudulent purposes on the part of defendant, and did not in fact learn of the same for some time thereafter.” The case was tried before the court and a jury; the. issue raised by defendant’s plea of privilege being submitted to the jury in connection with the case on its merits, and the trial resulted in a verdict and judgment denying the plea of privilege, and awarding plaintiff damages in the sum of $2,500. From this judgment defendant appealed.

The right to maintain this suit in Hunt county is predicated upon the seventh subdivision of article 1830 of the statutes, which authorizes a defendant in all cases of fraud to be sued in the county in which the fraud was committed, although his domicile may be in some other county, and the first assignment of error complains that the verdict of the jury finding against appellant on its plea of privilege to be sued in Zavala county, which, according to the undisputed evidence, was its place of domicile, is against the great weight of the evidence, and not supported thereby. • Whether or not this is the correct view of the evidence we need not stop here to inquire. It is sufficient to say that appellant, by the filing and trial of its cross-action seeking affirmative relief, as shown by our statement of the pleadings, waived its plea of privilege to be sued in the county of its domicile. It has been repeatedly held by the appellate courts in this state that the filing of such a cross-action and a trial thereon is equivalent to the institution and trial of a new suit by the defendant against the plaintiff, and constitutes a waiver of a plea asserting the right to be sued in another county. It follows that this assignment, without reference to the state of the evidence bearing upon the issue tendered by the plea of privilege, must' be overruled. Kolp v. Shrader, 131 S. W. 860; Thorndale Mercantile Co. v. Evens & Lee, 146 S. W. 1053; E. T. Ramsey & Son v. Cook, 151 S. W. 346; Carver Bros, v. Merrett, 155 S. W. 633; Amarillo Commercial Co. v. Milling & Grain Co., 156 S. W. 1124; Barbian v. Gresham, 156 S. W. 365.

The second assignment of error is that the court erred in overruling defendant’s first special exception to that portion of plaintiff’s first amended petition which reads thus: “The defendant was further obligated by said contract to sink a well upon said land, and had guaranteed a supply of water therein sufficient for purposes of irrigation. That the section of the state wherein said land is located is arid, and the rainfall is wholly insufficient for the purpose of growing the usual crops. That the clause in said contract guaranteeing said water was intended to mean, and in fact did mean, a supply of water from the well to be sunk on said land sufficient in quantity to irrigate the 40 acres of land purchased. That the matter of a water supply upon said land sufficient for the purposes of irrigation was a material consideration with plaintiff in the purchase of said land, and the value of said land is almost wholly dependent on such supply of water.” The clause in the written contract referred to in that portion of the pleading quoted is as follows: “It is agreed to bore on land above described 10% in. casing, guaranteeing water and draw on R. L.'Tolbert for total cost of well when completed.” The proposition advanced is that: “When the terms of a written contract are free from ambiguity, and when they are susceptible of a clear and sensible construction, their "meaning cannot be varied, enlarged, or restricted without an allegation of mistake or fraud.” This proposition unquestionably embodies a correct general rule of law, but it is not, we believe, applicable here. Manifestly the clause of the contract in question was not inserted therein without regard to the quantity or uses to 'which the water guaranteed was to be put, and in that respect it evidently does not unequivocally and fully express the intention of the parties. In such case parol evidence is admissible to show the situation of the parties and the circumstances under which a written instrument was executed, for the purpose of ascertaining the intentions of the parties and properly construing the writing. In other words, it said that in such a case the court may, by admitting in evidence the extrinsic circumstances under which the writing was made, place itself in the situation of the party who made it, and so judge of the meaning of the words, and of the correct application of the language to the things described. Such evidence is received, not for the purpose of importing into the writing an intention not expressed therein, but simply with the view of elucidating the meaning of the words employed; the duty of the court being to declare the meaning of what is written in the instrument, and not of what was intended to be written. 17 Cyc. pp. 673-675. The language, “guaranteeing water,” in the contract under consideration, could only be ascertained, it occurs to us, “from a full history of the circumstances under which it was used, and for this purpose the court was authorized to receive evidence explaining the subject-matter, the surrounding circumstances, the relation of the parties, and the inducing cause which led up to the making of the agreement, and this is especially true under the acts of fraud alleged in plaintiff’s petition.” In so far, therefore, as the court’s action in overruling the special exception is concerned there was no error. In this connection it may be further stated that it does not appear that any objection was urged in the trial court to the admission of the evidence offered in support of the allegations sought to be stricken out by the special demurrer thereto.

The fourth assignment of error is as follows: “The court erred in refusing to permit the defendant to ask plaintiff’s witness W. T. West a leading question, and by such leading question to prove by plaintiff’s said witness that at the time the contract was made, and while it was being written, and just before the contract was signed by the parties, plaintiff asked defendant’s agent Hughes to write in the contract a guaranty of enough water for irrigating purposes, and that the said Hughes at the time refused to guarantee even a bucketful of water, and refused to guarantee any quantity of water under the ground, but said he would guarantee, by sinking a well, that water could be had, and that was as far as he would go, as is fully shown by defendant’s bill of exception No. 15.” This assignment is well taken and the error therein complained of was prejudicial, we believe, to the defendant. We agree with the contention of appellant that a witness called and placed on the stand by a party to the suit remains, so long as he is testifying, the witness of the party calling him, and the opposite party has a right to propound leading questions to him. This rule is not, it seems, of universal application, but is, we think, supported by the weight of authority. Mr. Elliott, in his work on Evidence, vol. 2, § 51, expresses this view of the matter. He says: “There is a diversity of opinion as to whether, as a general rule, the cross-examining party is prohibited from putting leading questions as to a matter proper for cross-examination, but not specifically inquired of by the party calling him on his examination in chief. The weight of authority is in favor of the right to put leading questions, under the circumstances stated, in jurisdictions in which the cross-examination may inquire into the general subject. It is most desirable that rules of general practice, of so much importance, and of such frequent recurrence, should be as few, simple, and practical as possible, and that distinctions should not be multiplied without good cause. It would be often difficult, in a long and complicated examination, to decide whether a question applies wholly to new matter, or to matter already examined in chief. The general rule is that, on cross-examination, leading questions may be put, and it would not be useful to ingraft upon it a distinction not in general necessary to attain the purposes of justice, in the investigation of the truth of facts, that it would often be difficult of application, and that all the practical good expected from it may be as effectually attained by the exercise of the discretionary power of the court, where the circumstances are such as to require its interposition.” We are aware of no case in this state in which the precise question was passed upon, but we think the rule stated by Mr. Elliott in the above quotation is the better one, and should be adopted and followed in this state.

We are further of the opinion that the court erred in permitting the plaintiff to testify that before or at the time of the purchase of the 40 acres of land involved in this suit, he had been negotiating with the defendant for the purchase of an additional 40 acres, and that in his original petition he sued for damages because of defendant’s refusal to permit him to purchase said additional 40 acres of land, but that when the water failed he had no use for the land, and would not have taken it at any price. Whether plaintiff and defendant had at another time been negotiating about the sale and purchase of a tract of land other than the one in volved’ in this suit was immaterial, and should have been excluded. We are inclined to think, however, that the error was not of such a character as would of itself require a reversal of the case.

The ninth assignment of error is that the court erred in refusing to permit the defendant to prove by plaintiff’s witness, J. L. Barber, upon cross-examination, that the witness had sold a 40-acre tract of land similar to plaintiff's, and situated near plaintiff’s, for about $100 per acre, as is fully shown by defendant’s bill of exception No. 11. We are of opinion that the exclusion of this testimony was error, and harmful to appellant. It was material on the issue of damages, if any, sustained by the plaintiff. It appears that plaintiff testified that the land he .bought from defendant, without an irrigating well on it, was practically worthless, and it was permissible, in rebuttal of such testimony, for the defendant to show that a similar tract of land near by, without such a well, sold for a large price. While the record discloses that the witness would not have stated that he sold his land for $100 per acre, it does appear by bill of exception that he would have testified that he realized for the land in the “neighborhood of $100 per acre.” No ground of objection to the question asked seeking to elicit this testimony was stated at the time of its exclusion, but it is urged in this court that it was properly excluded because “the witness Barber’s land and the circumstances surrounding it, as shown by the testimony, were quite dissimilar to that of appellee, etc. We do not agree with this view of the testimony. On the contrary, we think the testimony shows that the land of the witness was sufficiently near to and so similarly situated to defendant’s land as to render the excluded testimony admissible.

The court charged the jury, among [ [ other things, as follows: “If you believe from the evidence that at the time plaintiff contracted with defendant to buy said land, he informed' defendant’s agents that he was making said contract with the intention of taking immediate possession and making a crop thereon during the year 1912, and that defendant unreasonably delayed the boring of a well that would produce a supply of water sufficient for irrigation for the purpose for which plaintiff, within the knowledge of defendant, purchased said land, and that plaintiff was thereby prevented from making a crop upon said land, and caused to lose time during the year 1912 for himself, his son, and teams, you will find for plaintiff the reasonable value of the time so lost, if any, for himself, his son, and his teams, stating separately the value of each.” This charge is objected to on the grounds that it is upon the weight of the evidence: (1) In that it assumes that the defendant had undertaken to bore a well on the land in controversy that would produce a supply of water sufficient for irrigation purposes; (2) because the evidence was not sufficient to warrant a submission to the jury of the loss of time for plaintiff, his son, and teams. The second ground of objection to the charge is not sustained by the record, but the charge is, we think, subject to the first objection urged. The language, “and that the defendant unreasonably delayed the boring of a well that would produce a supply of water sufficient for irrigation for the purpose for which plaintiff, within the knowledge of defendant, purchased said land,” clearly assumes that defendant by his contract with the plaintiff had obligated itself to bore a well on the land sold to plaintiff that would produce a water supply sufficient for irrigation purposes. This was a stoutly contested issue in the case, and the assumption in the charge was highly calculated to prejudice the rights of defendant involved in that issue.

The sixteenth assignment of error and [ the propositions thereunder are to the effect, among other things, that the court erred in not granting defendant’s motion for a new trial, because, the great weight of the evidence, if not the uncontradieted evidence, shows: (1) That the defendant made no false representation to plaintiff which induced him to buy the land in question; (2) that plaintiff, instead of relying on the representations of the defendant, made a personal investigation himself of the lands and personal examinations of the wells upon the same, and relied upon the information thus acquired in buying; (3) that at the time the written contract for the purchase of the land was made plaintiff tried to induce defendant’s agents to write in the contract a guaranty of water sufficient for irrigation purposes, and that defendant refused to do so. The evidence shows, among other things, that about the year 1909 defendant acquired title to about [ 100,000 acres of land in Zavala county, Tex., and bad about 50,000 acres of tbe same see-tionized and surveyed, and test wells bored at tbe corners of tbe sections for tbe purpose of ascertaining whether water could be found by sinking wells. Defendant also subdivided each section and placed said lands on tbe market. On tbe 17th day of January, 1912, a contract was made between tbe defendant and tbe plaintiff, whereby the defendant bound itself to sell and convey to plaintiff, and plaintiff bound himself to receive and pay for, 10 acres, a quarter of a quarter of a section of land. After tbe said contract was reduced to writing, and before it was signed, tbe defendant’s agent, at tbe instance of plaintiff, wrote into said contract as a part thereof tbe following: “It is agreed to bore on land above described 10% in. easing, guaranteeing water, and draw on R. L. Tolbert for total cost of well when completed.” Tbe contract was signed in behalf of tbe defendant by E. G. Hughes, its agent and was signed by plaintiff and witnessed by W. H. Parish, who was also an agent of tbe defendant. At and prior to tbe time the contract was made the defendant bad printed and was circulating as advertising matter a pamphlet purporting to give picture views of its lands in Zavala county and of farms on those lands, and of wells being pumped for irrigation purposes. These printed pamphlets stated in substance that tbe lands mentioned were irrigable by pumping water from wells; that tracts of land were being irrigated from wells; that sufficient water was being secured, and could be secured, from wells to irrigate tbe said lands. A copy of tbe pamphlet above mentioned came into plaintiff’s bands before he signed tbe contract. Defendant’s agent, Hughes, prior to tbe time plaintiff made tbe contract, stated to plaintiff and to others that there was an.abundance of water on this land, that tbe lands could be irrigated by sinking wells and pumping water; that tbe lands were being so irrigated. There were, on some of tbe tracts of land sold out of defendant’s tract above 'mentioned at the time tbe contract was made, and at tbe time of tbe trial, wells from which lands were being irrigated.

Plaintiff R. L. Tolbert testified as follows:

“I am pretty well acquainted with tbe wells on tbe land close to mine, I know every farm and every well. There were plenty of wells sunk in tbe locality close to my land that did not furnish sufficient water to irrigate 40 acres, and I only know of one that would furnish enough water to irrigate 40 acres, and .that was at the experimental station, what they called tbe deep well. * * * Outside of that well at tbe experimental station I do not know of any well on their land, and I do not think there is one that will supply enough water to irrigate 40 acres; they water from 8 to 15 aeres, and I have watched ■them closely. When they .talked to me about the land I wanted to see it, if they could 'show me anything I like to see, anything that is good, that shows to be good, and this was represented to be good. I like to see anything before I buy it, if it is possible to do so, and before I bought this land I went down and saw it. I cannot say I was on the ground and looked all over it, I was not there very long, only a day and a half. I could look over a whole lot of ground in a day and á half, and we did see considerable ground. I saw a good many of the wells • some of the farms were in cultivation; there were not a lot of them in cultivation, only what I would call a few. I saw the truck growing and some of the land being irrigated; but as, to things growing without irrigation, they did not take us to see any of the land that was not irrigated, but I learned afterwards, after I got down there, that there was some growing without irrigation, not much. I had 'it in my mind to investigate the land before I bought, and that was why I was investigating down there.” Plaintiff further testified: “I can hardly state all the conversation I had with Mr. Hughes and Mr. Parish about the time the contract was made for the purchase of this 40 acres of land. As stated, I went down and looked at the land; they were selling it as an irrigation proposition, and claimed that there was plenty of water on the land. I considered the water proposition and told them- so; in fact, I told them that was the only way I would consider it; if they had plenty of water on the land it was all right; otherwise I would not have it at all. That conversation was had on the land, in Greenville, here after I came back, just before I bought the land, and at the time I bought it. I talked with Mr. Hughes and Mr. Parish both about it, with one as much as the other, but perhaps I talked with Mr. Parish a little the most. They guaranteed an inexhaustible supply of water; that it could not be exhausted by any. machinery in any way, and at a depth of not more than 200 feet. That statement influenced me in the purchase of the land; I would not have had the land if he had not made it so plain about the water, that was the idea I had; they knew the situation, and I relied upon it, and told them so at the time. I went down there with Mr. Hughes to look at the land. Before I went down there, and after I got back here, Mr. Hughes made representations to me about this land. I did not buy while I was down there. He represented to me, after I came back here from looking at the land, at the 40 acres that they offered to sell me, that there was water for , irrigation inexhaustible water. * * * Going back to the 17th day of January, the day the contract was made, there is a stipulation written in the face of the contract. Mr. Hughes put it in there, and it was understood between me and Mr. Parish that they were to furnish me water sufficient for irrigation; that is the reason Mr. Hughes put it in there, tie did not put that in the contract, he did not put it in just like I wanted it done, lie would not do it, or he did not. do it. He did not refuse positively to put that in the contract; he said the amount of water you would get in a well would depend upon the machinery; if you put in the proper machinery, the water is inexhaustible, and he said that he could not guarantee any amount of water unless 1 would guarantee the machinery I would put in. I mentioned at the time the contract was made, and before it was signed, that he put in the contract that they would guarantee 'me sufficient water for irrigation, and Mr. Hughes said that he could not do it unless I guaranteed the machinery. I did not' ask them to guarantee enough water to irrigate the 40 acres. I said I would like the water clause to be a little stronger, and he said he could not put it in unless I guaranteed the machinery. He did not refuse to guarantee the water, he said he could not do it unless I guaranteed the machinery, and I asked him what kind of machinery to use, and he said, like Mr. Vann, the school-teacher was using; that if I put in an outfit like that I would have enough water for 80 acres. I had an option on the 40 acres beyond me, and he said that with that machinery it would furnish an inexhaustible supply of water. That was not written in the contract; of course, I asked him to put it„ in. I accepted the contract without that being written in, on his statement that he would guarantee sufficient water for irrigation, in connection with the contract. I wanted him to write it in the contract, and he said he could not; the contract will show for itself whether it is in there or not. I signed the contract and paid the money without its being, in there. X did not accept the contract without them guaranteeing the water; I looked at their honor and the contract both. Mr. Parish said there was a million and a half behind the company. Of course that statement in the contract that they were to sink a well of certain dimensions, guaranteeing water, was partly a guaranty for the securing of water, and partly I relied on that guaranty. I took it that if they refused to put a water clause in the contract, it would be evidence that they had no water, but their putting in that clause made me feel more like there was a certainty of water.”

The evidence bearing upon the propositions contended for by appellant is too voluminous to be quoted in full, and we have not undertaken to do so. A careful reading of all of it has led us to the conclusion that the trial court should have sustained the defendant’s motion for a new trial, and that it becomes our duty to reverse and remand the case. The great weight and preponderance of the evidence, if not the undisputed evidence, shows that if the agent or agents of the appellant made any false or fraudulent representations to appellee as to the quantity of water which could be procured from a well on appellee’s land, appellee at the time the contract was made, -had no right to rely upon such representations, because said agents at the time, and just before said contract was executed, in effect, informed appellee that appellant would not be bound by these representations. As has been seen, appellee himself testified that, notwithstanding the representations made by appellant’s agents, and upon which he says he relied, they refused to guarantee or commit the appellant by the terms of the written contract to the proposition that a sufficient supply of water could be procured for irrigation purposes. In Bruner Bros. v. Strong, 61 Tex. 555, it is said: “If a representation be made by one contracting party to another in reference to a matter affecting a contract, and the person to whom it is made be informed that the other will not be bound by such representation, then, if it proves untrue, it is not such misrepresentation as amounts to fraud that will invalidate a contract; for such representation cannot be fraudulent if believed to be true, for the party to whom it is made has no-right to rely upon it when the other informs him that he does not intend to be bound by it.” See, also, Jackson v. Stockbridge, 29 Tex. 394, 94 Am. Dec. 290; Carson v. Kelley & Sweatt, 57 Tex. 382; Belcher v. Mulhall, 57 Tex. 19. Again, we think the great weight and preponderance of the evidence shows-that the representations made by appellant’s, agents to the appellee in regard to the quantity of water that could be procured from a-well on the land were not relied upon by ap-pellee, and did not operate as the inducement of his purchase. His own testimony is to the-effect that, before he would make the contract for the purchase he went upon the land' for the purpose of investigating the matter, and that he did investigate it; that he saw irrigation wells on appellant’s lands in operation ; that he saw lands being irrigated and! truck growing on theim His testimony, as a whole, notwithstanding statements to the-effect that he did rely on the representations made to him and was thereby induced to-buy, leads almost irresistibly to the conclusion that he would not rely upon the representations of appellant’s agents, but 'that, before he would bind himself to buy the land, he made a personal investigation and relied upon the knowledge thus acquired and his own judgment in making the purchase. ■ The testimony shows that he was upon the ground and made the first investigation in December, 1911; that he moved upon the-land about March 18, 1912, and remained there, with opportunities of knowing the amount of irrigation that was being done, until about the last of April, before he openly raised any question about the quantity of water that could be obtained from the well on his land, or the irrigability of the lands.

Touching the evidence, as it appears in the record sent to this court, we desire to-add that, while we hold that the plaintiff’s allegations, to the effect that the clause of tlie contract guaranteeing water was intended to mean a supply of water from tlie well to be sunk on plaintiff’s land sufficient to irrigate the same was not obnoxious to defendant’s special demurrer, yet we believe the evidence was insufficient to sustain said allegations. Appellee’s own testimony shows that appellant's agent, who represented it making the contract, refused to stipulate therein that appellant would guarantee a sufficient supply of water for irrigation, and refused to put in the contract a stipulation to that effect, unless appellee would guarantee to put in the well from which the water was to be obtained the proper machinery to secure such results, stating, in effect, that the capacity of the well or the amount of water to be obtained therefrom would depend upon the character of the machinery with which it was operated, which it seems appellee declined to do, and accepted and signed the contract with the provision simply “guaranteeing water.” This testimony of the appellee, aside from the positive testimony offered by appellant, shows that the words, “guaranteeing water,” were not intended to mean water enough for irrigation. Our conclusion is that the verdict and judgment in this case are against the great preponderance of the evidence, and should be set aside. We are well aware that the general rule in the appellate courts of this state is to leave the verdicts of juries undisturbed where there is any substantial evidence upon which they may be predicated; and they have no right to reverse and render a judgment because the verdict is against the great preponderance of the evidence, but in such case they are authorized to reverse and remand for a new trial. Irving v. Freeman (Sup.) 155 S. W. 931. We believe it would be wrong to sanction and permit the verdict and judgment in this case to stand upon the evidence as it appears in' the record before us, and we are unwilling to do so.

The other assignments disclose, we believe, no reversible error, and will be overruled.

For the errors indicated, the judgment of the court below is reversed and the cause remanded.


author: KEY, C. J.

text:
    SMITH v. BOGLE.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 25, 1914.)
    1. Appeal and Ebeoe (§ 759) — Assignments op Eeeoe.
    Paragraphs of the motion for new trial cannot be considered as assignments of error, where they are not copied into appellant’s briefs as required by Courts of Civil Appeals Buies, No. 29 (142 S. W. xii).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Appeal and EIeeob (§ 757) — Assignments op Eeeoe — Copying in Beief.
    A paragraph of the motion for new trial asserting error in an instruction submitting an issue was sufficiently copied into appellant’s brief to be considered as an assignment of error under Courts of Civil Appeals Buies, No. 29 (42 S. W. xii), though as copied it omitted a part of the paragraph stating the reasons for charging that the court erre'd in its instruction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.]
    3. Appeal and Eeeoe (§ 1068) — Haemless Eeeoe — Insteuctions.
    In an action for commissions, error in submitting the issue of joint liability of the defendants was harmless, where the verdict for plaintiff was not joint.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    Appeal from. District Court, Travis County; Chas. A. Wilcox, Judge.
    Action by Mrs. D. M. Bogle against J. E. Smith. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. Bobt. Bright, of Austin, for appellant. E. C. Gaines, of Austin, for appellee.

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

   KEY, C. J.

Mrs. D. M. Bogle brought this suit against J. E. Smith and the Bowe-Cypher Bealty Company, and the individual members thereof, to recover commissions alleged to be due her for services rendered in effecting an exchange of real estate. There was a jury trial which resulted in the plaintiff’s recovery of separate judgments, one against the defendant Smith for $165, and the other against the other defendants for $94.30. Smith alone has prosecuted an appeal.

No separate assignments of error were filed in the court below, and appellant, as authorized by recent statute, has attempted to use certain paragraphs of his motion for new trial as assignments of error. Appellee objects to a consideration of any of the assignments, because the paragraphs of the motion for new trial relied on as assignments of error are not copied in appellant’s-brief, as required by rule 29 (142 S. W. xii). That objection is well taken, and is sustained as to all the assignments, except the sixth. Overton v. Colored Knights of Pythias, 163 S. W. 1053, and Iowa Manufacturing Co. v. Qalcowich, 163 S. W. 1054, recently decided by this court.

So much of the sixth assignment as is necessary to constitute an assignment of error is copied from a paragraph of the motion for new trial, though as copied in the brief it omits that portion of the paragraph in the motion for new trial which stated the reasons for charging that the court erred in the paragraph of its charge which was therein complained of. Giving a very liberal construction to the rule requiring assignments to be copied in the brief, we hold that appellant is entitled to have his sixth assignment of error considered by this court. That assignment charges that the court erred in submitting to the jury the question of whether or not the Rowe-Cypher Realty Company entered into a conspiracy with appellant to prevent appellee from collecting a commission from appellant; the contention being that there was no evidence whatever tending to show the existence of such conspiracy. The paragraph of the charge complained of was not intended to advise the jury as to the law relating to the plaintiff’s right to recover a separate judgment against the appellant, Smith, but undertook to point out under what circumstances appellant would be entitled to recover a joint and several judgment against all the defendants.

If it be true, as claimed by appellant, that there was no evidence which authorized the court to submit the issue of joint liability of all the defendants founded upon the alleged conspiracy, then the answer is that, while it may have been error to submit that issue, such error has become abstract and immaterial, because there was no joint finding against the defendants. The Rowe-Cypher Realty Company were real estate agents handling certain property which in the negotiation set out in the plaintiff’s petition was exchanged for certain property owned by appellant, Smith, and appellee claimed that she was entitled to recover a commission against appellant, Smith, • based upon the value of the property which he disposed of; and that by reason of an agreement between her and the Rowe-Cypher Realty Company she was entitled to one-half of the commission which that company collected from its client; and she also alleged that -the Rowe-Cypher Realty Company had conspired with appellant, Smith, to defeat her right to recover against the latter, and that therefore the former was liable to her for the amount of her commission under her contract with Smith.

The first two issues were submitted to the jury by the third and fourth paragraphs of the court’s charge; and the question of the joint liability of the other defendants with the defendant Smith for the commission claimed for negotiating the sale of Smith’s land, was submitted by the fifth paragraph. 'J^ut as the jury returned a separate and not a joint verdict, it is clear that they found for the plaintiff under the third and fourth paragraphs of the charge, and not under the fifth, which is the one complained of by the assignment of error under consideration; and therefore, if the court committed error in giving that paragraph of the charge, n.o harm resulted to appellant. Evidently the jury concluded that no conspiracy was shown, and sustained the plaintiff’s contention that she was entitled to recover under separate com tracts, one with the defendant Smith and the other with the other defendants.

Our conclusion is that the judgment should be affirmed, and it is so ordered.

Affirmed.