author: FLY, C. J.

text:
    LIPSCOMB et ux v. WALKER et al.
    (No. 5434.)

    (Court of Civil Appeals of Texas. San Antonio.
    March 10, 1915.
    Rehearing Denied April 14, 1915.)
    Bills and Notes <§=^139 — Modification and Renewal — Extension—-Consideration.
    The payee’s attorney told the maker that he did not want payment of notes due in May, 1914, but wanted a renewal and an extension to January, 1916, and that the renewal agreement would have to be made by July 4, 1914, and prepared a renewal or extension agreement for the maker to sign, but the maker did not agree to forego his right to pay off and discharge the note, and did not sign the agreement. Held, that there was no consideration for the extension agreement, and that the agreement to extend the time of payment to January, 1914, never having been executed, could not furnish consideration therefor.
    [Ed. Note. — Eor other cases, see Bills and Notes, Cent. Dig. §§ 340-354; Dec. Dig. 139.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by W. W. Lipscomb and wife against G. C. Walker and another. Judgment for defendants, and plaintiffs appeal.
    Reversed, and judgment rendered for plaintiffs.
    E. P. Lipscomb, of San Antonio, for appellants. Houston, Boyle & Storey, of San Antonio, for appellees.

       Writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit on two promissory notes and to foreclose a vendor’s lien, instituted by appellants against G. C. Walker and W. P. Walker. Appellants sought to recover the principal, interest, and attorney’s fees on said promissory notes.. The principal and interest, after the suit was instituted, were paid in full, and the only contest in the trial court.was as to the attorney’s fees. The cause was tried by the court and resulted in a judgment for appellees.

To defeat.the collection of attorney’s fees, it was pleaded by appellees that learning that E. P. Lipscomb, the son of appellants, was the attorney of his mother, to whom the notes belonged as her separate property—

“they at once went to see said attorney, and told him that they wished to fix the matter, when the said E. P. Lipscomb told them, as his father had formerly done, that his mother did not want a payment of any of the principal of said notes, but wanted it to draw interest and a renewal of the notes, and extension to January 1, 1916, so that said renewal could be recorded, and stated to defendants that, by reason of some law passed by the Legislature, this renewal would have to be made by the 4th day of July, 1914, and these defendants then and there promised to sign said renewal within that time, on notice from said attorney. That after this, and a few days before the filing of this suit, defendants met the said attorney and fixed a time, to wit, July 1, 1914, for signing said papers, but on the next day, or a day or two afterwards, about one month before said time fixed, in utter disregard of their agreement and understanding, without any notice to these defendants, and without any demand for the payment of said notes, or any part thereof, said attorney filed this suit. Defendants further aver, in special defense of said suit, that the understanding and agreement by and between plaintiff W. W. Lipscomb and these defendants, the said attorney, as set out in the eighth, ninth, and tenth paragraphs of this amended answer, was a valuable consideration moving from these defendants to said plaintiffs for the extension and renewal of said notes and each of them, and defendants now plead said consideration in bar of plaintiffs’ recovery of the amount of attorney’s fees claimed herein, or any part thereof.”

It will be noted that there is no allegation that appellees, in consideration for the delay in signing the extension, agreed to forego their right to pay off and discharge the notes, but G. C. Walker testified as follows:

“It was my understanding that we could pay off or call and sign a renewal of the notes, at any time before July 1st, and I never received any notice of a contrary understanding. I was able to pay off the notes.”

That understanding of G. G. Walker arose from the last conversation he had with E. P. Lipscomb before the suit was instituted.

At the time of the last-mentioned conversation, appellees had not bound themselves to sign the renewal of the notes and no extension had been granted. All there was of that conversation, according to appellees’ testimony, was a naked promise to wait until July 1st, about six weeks, for appellees to sign the contract of extension or pay off the notes. There was no consideration given for the six weeks’ extension. Appellees could have paid off the notes the next day, and appellants- could not have objected. It is not claimed by appellees that they agreed to fore-go the right to pay off the notes at any time, but they claim that the consideration was the agreement by appellants to give them until July 1st to sign the extension contract and their acceptance of the same. That is no consideration, under the law. There was no positive promise to not pay off the notes and to sign the renewal contract As found by the trial judge:

“At the time of the filing of the suit, there existed between plaintiffs and defendants a mutual agreement to the effect that at any time before July 1, 1914, defendants could pay off or sign the contract to pay said notes on January 1, 1916.”

The learned judge who tried the case concluded that the agreement to extend the time of payment of the notes until January 1, 1916, was a sufficient consideration for the extension from May 20th until July 1, 1914. The agreement to extend the notes until January 1, 1916, had never been executed, and could furnish no consideration for another agreement. There was no extension until January 1, 1916, and appellees had it in their power to prevent any such extension ever being executed. They could pay off the notes at any time. There must be mutuality in a contract to render it legal and binding.

In the leading Texas case of Benson v. Phipps, 87 Tex. 578, 29 S. W. 1061, 47 Am. St. Rep. 128, which goes as far as any case should go on the subject, it was held:

“In case of a debt which bears interest either by convention or by operation of law, when an extension for a definite period is agreed upon by the parties thereto, the contract is that the creditor will forbear suit during the time of the extension, and the debtor foregoes his right to pay the debt before the end of that time. The latter secures the benefit of the forbearance; the former secures an interest-bearing investment for a definite period of time. One gives up his right to sue for a period in consideration of a promise to pay interest during the whole of the time; the other relinquishes his right to pay during the same period, in consideration of the promise of forbearance.”

Seeking to reconcile that case with others seemingly in conflict with it, the court said:

“In many cases which seemingly support the contrary doctrine, there was a mere promise by the creditor to forbear, without any corresponding promise on part of the debtor not to pay during the time of the promised forbearance. In such cases, it is clear that there is no consideration for the promise.”

Certainly there was no promise, on the part of the debtors, in this case, not to pay during the time of the verbal extension, but the absolute right to pay was reserved. It is not pleaded nor attempted to be proved that the debtors deprived themselves of the right to pay.

A ease very similar in its facts to this is Austin Real Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430, in which the court said:

“Here the creditor agrees to extend • for one week, and the debtor agrees to pay within the week. lie does not agree that he will not pay until the end of the week, or, * * * in case he does pay, he will pay interest for the entire period of the extension. Hence there was no consideration for the promise of the creditor.”

See, also, Roberds v. Laney, 165 S. W. 114.

No written extension was executed in this case, because the one drawn up and signed by appellants was never executed by appellees. The case must turn on the verbal agreement to not sue until July 1, 1914, and, as here-inbefore indicated, there was no consideration whatever for that promise. It would be an absurdity to contend that the payment of the note was extended for 17 months, when appellees never signed such agreement and were in no wise bound by it. Tunstall v. Clifton, 49 S. W. 244. The evidence showed authority on the part of the attorney to collect the amount of the notes or to grant an extension on the same. The notes were past due and unpaid.

Appellees did not offer to sign the written contract of extension at any time after the alleged agreement with the attorney, and did not consider that they were bound by it because they claimed the right to pay the notes off or sign the contract as they might desire. There was no written contract binding on appellees, and they did not so claim in the lower court. The only contract of extension was the verbal one testified to by G.- C. Walker. In justice to E. P. Lipscomb, who Walker swore made the oral contract, it will be stated that Lipscomb swore positively that he made no such agreement with Walker.

The judgment is reversed, and judgment here rendered that appellants recover of ap-pellees the sum of $812.26 attorney’s fees, the same being 10 per cent, of the sum of $8,122.69, the amount paid on the notes on October 3, 1914, together with 6 per cent, interest on said attorney’s fees from said date and all costs in this behalf expended.
      ©snFor other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes

      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    BEATY v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.
    (No. 5454.)
    (Court of Civil Appeals of Texas. Austin.
    March 12, 1915.
    Rehearing Denied April 14, 1915.)
    1. Carriers <@=>316, 344 — Injuries to Passengers — Actions—Burden of Proof.
    A passenger suing for a personal' injury sustained by jumping from a moving train under the belief that a collision was imminent, must show that he was injured because of actionable negligence, and that he was free from contributory negligence; and, though there was actionable negligence, there could be no recovery if he was guilty of contributory negligence.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1261,1262,1283,1285-1294,1399 ; Dec. Dig; <§=3316, 344.]
    2. Negligence <@=>136 — Contributory Negligence — Actions—Question for Jury.
    Where reasonable minds could not differ on absence of defendant’s negligence, or on the presence of plaintiff’s contributory negligence, it was the duty of the court to direct a verdict for defendant.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 277-353; Dec. Dig. <§=>136.]
    3. Carriers <§=>302 — Railroads <§=>365 — Injuries to Passengers — Parallel Roads.
    The K. and G. railroads maintained parallel tracks sufficiently far apart for the safe passage of their trains. A passenger of the K. railroad, believing that a collision between trains of the two companies was imminent, jumped from the train and was injured. Neither of the companies knew of the passenger’s apparent danger. There was no testimony that the K. train whistled, but there was testimony that the C. train whistled, before the trains approached each other, but it did not appear why it whistled. The C. train ran at an excessive speed. Held, that the facts did not show that the railroads were guilty of actionable negligence, though the passenger erroneously believed that he was in imminent danger.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1221-1223; Dec. Dig. <§=>302; Railroads, Cent. Dig. §§ 1254-1256; Dec. Dig. <§=>365.]
    4. Carriers <§=>338 — Injuries to Passengers —Contributory Negligence.
    Two railroad companies maintained parallel tracks sufficiently far apart for trains to pass in safety. A passenger jumped from a train, believing that' a collision between trains of the two companies was imminent. Had he looked, he would have seen that the tracks did not cross each other. He was familiar with the tracks and knew to whom they belonged. Had he remained on the train, he would have been safe. He was an experienced traveler accustomed to riding on trains. Held, that he was guilty of contributory negligence, as a matter of law, in jumping from the train.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1352; Dec. Dig. <§=>338.]
    Appeal from District Court, McLennan County; Tom L. McCullough, Judge.
    Action by J. H. Beaty against the Missouri, Kansas & Texas Railway Company of Texas and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    James E. Yeager, of Waco, for appellant. Allan D. Sanford and W. E. Spell, both of Waco, for appellees.
   RICE, J.

The Missouri, Kansas & Texas Railway Company of Texas, hereinafter called the Katy, on the. 20th of April, 1913, ran an excursion train from Waco to Dallas, and return, upon which appellant was a passenger. On the return trip, a short way out from the Katy depot, that company’s track approaches within a short distance of the track of the St. Louis Southwestern Railway Company of Texas, hereinafter called the Cotton Belt; and thence for some distance these tracks parallel each other. On the evening in question, just as the Katy going south out of Dallas, upon which appellant was riding, reached the point where said tracks began to run parallel, a Cotton Belt train from the west was seen coming into the city, and the two trains appeared as though they might run into each other, while, as a matter of fact, they could not do so. Appellant, laboring under the belief that the danger of collision was imminent, jumped from the window of the car in which he was riding to the ground, sustaining serious injury from the fall; and this suit is brought by him against both companies to recover damages therefor, alleging: (1) That they negligently built and maintained their tracks in and along the streets of Dallas in such close proximity to each other as to create in the minds of passengers on trains running over said tracks the impression that there was great apparent danger of a collision; (2) that appellees were negligent, after discovering his peril, or after they should have discovered it by the use of ordinary care and diligence, in failing or refusing to stop or slow down their trains, or either of them; (3) that appellees negligently and rapidly blew their whistles, as if to give warning of approaching danger; (4) that the Katy was negligent in starting and continuing to run its train when it knew, and could by ordinary care have known, that a Cotton Belt passenger train was due to pass there at about right angles with it, and was then coming in at a great rate of speed and in plain view; and (5) that appellees were each guilty of negligence in operating their trains faster than seven miles per hour, in violation of the speed ordinance of the city of Dallas. Ap-pellees answered, denying generally and specifically each allegation of negligence charged against them, and likewise pleaded contributory negligence on the part of appellant. There was a jury trial, and the court peremptorily instructed a verdict against appellant, upon which judgment was rendered, from which this appeal is prosecuted, and such ruling is assigned as error.

Before appellant was entitled to recover, it became necessary for him to show by preponderance of the evidence: First, that he was injured on account of the negligence of appellees; and, second, it must appear that he was not guilty of contributory negligence. Even if appellees had been guilty of negligence which was the proximate cause of his injury, still, if it had been shown that he was guilty of contributory negligence in jumping from the train, then he would not be entitled to recover; and this is true whether his right of action is predicated upon real or apparent danger. If upon the conclusion of the trial it appeared from the evidence, either that appellees were not guilty of negligence, or that appellant was guilty of contributory negligence, and that reasonable minds could not differ with reference thereto, then it was the province and duty of the court to direct a verdict in favor of appellees. These rules of law are elementary, and it is not deemed necessary to cite authority in their support; so that we will briefly discuss the evidence in order: First, to determine whether or not appellees were guilty of negligence in either of the respects charged; ánd, second, whether appellant was guilty of contributory negligence.

It seems that appellees’ respective tracts had been located parallel to each other, and their ears operated thereon for a number of years along and over the streets of Dallas, and that no similar accident had ever occurred. And it is not made to appear from the evidence that the Katy tnew the Cotton Belt schedule, and that one of its trains would be coming in at that hour; frat, even if this had been shown, still, it would not have been negligence on the part of the Katy to start its train out at such time, since it appears that the tracks were sufficiently far apart for the respective trains to pass in safety. While appellee testified that he did not jump until it seemed to him that there was going to be a collision (and this opinion is corroborated by several other witnesses), still the cars were 60 feet apart when he jumped, and it was daytime, and he, as well as the other passengers, observed the incoming train several blocks away, and could have known, if they had looked, that the tracks did not cross each other. Besides, appellant testified that he was about 20 years of age, and had been accustomed to riding on cars about once a week since he was 14 years old; and there was testimony showing that he had lived in Dallas and was familiar with the' tracks in question, and knew of his own knowledge to whom they belonged; knew that they were separate tracks; knew which was the Cotton Belt and which the Katy, and had ridden on the Cotton Belt and knew where the respective depots were, and that the. Cotton Belt passed some distance from the Katy depot going south to its own; but it is not clear whether he knew of these conditions before or after the accident. The evidence also shows that in a number of Texas cities besides Dallas railway tracks parallel each other in close proximity; and it seems to us a matter of common knowledge that this is frequently done, both in this state and elsewhere, so that the simple maintenance and operation of trains .over such tracks cannot, in and of itself, be regarded as negligence. There is no testimony showing or tending to show that either of appellees knew of appellant’s apparent danger, if any.

There is no testimony showing that the Katy whistled (and the charge of negligence in this respect was withdrawn on the trial); but there is testimony that the Cotton Belt did so before the trains approached each other, but it is not shown why it whistled. In the absence of testimony showing that it was negligently done, we must presume that there was some lawful occasion therefor on the part of the Cotton Belt, such as blowing for a crossing or to advise persons on or near the track of its approach. See C., R. I. & P. Ry. Co. v. Felton, 125 Ill. 458, 17 N. E. 765.

It is true the evidence shows that the Cotton Belt was running beyond the speed limits, .but this is not shown to have been the proximate cause of appellant’s injury. We therefore conclude that the evidence wholly failed to show that appellees were guilty of negligence; and, unless this has been done, no recovery could be had, notwithstanding appellant may have erroneously believed that he was in imminent danger when he jumped from the car. See G., C. & S. F. Ry. Co. v. Wallen, 65 Tex. 568; Dillingham v. Pierce, 31 S. W. 207; T. & P. Ry. Co. v. Urteaga, 25 S. W. 1036; McPeak v. Mo. Pac. Ry. (Mo.) 30 S. W. 176; Hutcheson on Carriers, vol. 3, § 1223; Elliott on Railways, vol. 3, § 1173; St. Louis & San Francisco Ry. Co. v. Murray, 55 Ark. 248, 18 S. W. 50, 16 L. R. A. 787, 29 Am. St. Rep. 32; C., R. I. & P. Ry. Co. v. Felton, supra.

In Gulf, C. & S. F. Ry. Co. v. Wallen, supra, it is held, as shown by the syllabus, that:

“In a suit against a railway company for damages for an injury to the person from negligence, to entitle the plaintiff to recover, it is not enough that the evidence shows that the injured person did only what a prudent person would have done under the same circumstances, but it must likewise show that the defendant committed some fault, or was'guilty of some negligence, which contributed to the injury.”

And in Dillingham v. Pierce, supra, Mr. Chief Justice Lightfoot, in passing upon a somewhat similar question, says:

“Upon the whole, we have not been able to find in the record before us any testimony showing any negligence on the part of the defendant company which would render it liable to the plaintiff, or in any way responsible for his unfortunate act in leaping from the rapidly moving train. If it should be conceded that the train was rapidly carrying him from his home and team, and that he did not want to go, still this would not render the company responsible to him for his own act in leaping from the train, under the circumstances shown by the testimony in the record” — citing Railway Co. v. Leslie, 57 Tex. 83, and Railway Co. v. Wallen, supra.

In St. Louis & San Francisco Ry. Co. v. Murray, supra, it is said:

“In order to render the railroad company liable for injuries received in an effort to escape an apprehended danger, there must have been a reasonable cause of alarm, occasioned by the negligence or misconduct of the company. If the effort of the passenger to escape resulted from a rash apprehension of danger which did not exist, and the injury which he sustained is to be attributed to rashness and imprudence, he is not entitled to recover. But if, on the other hand, he be placed, through the negligence or unskillful operation of its trains by the railroad company, in a situation apparently so perilous as to render it prudent for him to leap from the train, whereby he is injured, he will be entitled to recover damages, although he would not have been hurt if he had remained on the 'train.”

In discussing the same subject, Mr. Justice Schofield, in delivering the opinion in Chicago, Rock Island & P. Ry. Co. v. Felton, 125 Ill. 458, 17 N. E. 765, said:

“Since the right of recovery is here based upon the negligence of the defendant, it is not sufficient merely that plaintiff’s intestate became alarmed by reason of appearances produced wholly or in part by the defendant; it must appear that that which produced the alarm, and through it the injury, was negligence of the defendant.”

Does the evidence show that appellant was guilty of contributory negligence? We conclude that it does. He was in no actual danger; if he had remained on the train, he would have been safe. We do not think it was shown that there was such apparent danger as justified him in jumping from the train. If he had looked he could have seen before jumping that the tracks did not cross each other, but ran parallel, instead. He was an experienced traveler, accustomed to riding upon trains, and had ridden upon the Cotton Belt, and knew, it seems, of the situation and condition existing at the place where the accident occurred. Another passenger testified that, while it looked to him that the trains were going to cross, still he thought the railroad people knew what they were doing, and remained in his seat. Can it' be said, under the circumstances surrounding him, that appellant exercised reasonable and ordinary prudence in jumping from the moving train? We think not. His conduct, on the contrary, might be considered as reckless, rash, and inconsiderate. Where such is the case and injury results no recovery can be had. See Hutcheson on Carriers, vol. 3, § 1224, where it is said:

“But where the passenger encounters peril in an effort to escape from an apprehended danger, and in consequence sustains an injury, it must appear, in order to make the carrier responsible, that the danger was imminent, and was such as to reasonably induce in the mind of a person of ordinary prudence a belief that to make no attempt to escape would be attended with the destruction of life or serious bodily harm. In other words, there must have been a reasonable cause for alarm; for, if the effort of the passenger to escape resulted from the rash apprehension of danger which did not exist, the injury would be attributed to his own imprudent conduct, and he would be without remedy.”

See, also, Elliott on Railways, vol. 3, § 1173.

We hold that the evidence fails to show that appellees Were guilty of any negligence which was the proximate cause of the injury in question; and, believing that appellant was guilty of contributory negligence, we conclude that the trial court ruled correctly in instructing a verdict in favor of appellees, for which reason its judgment is affirmed.

Affirmed.
      <@moFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    GALVESTON, H. & S. A. RY. CO. v. CRAIGHEAD.
    (No. 421.)

    (Court of Civil Appeals of Texas. El Paso.
    March 11, 1915.
    Rehearing Denied April 15, 1915.)
    Damages &wkey;>130 — Personal Injuries — Excessiveness.
    In an action by a passenger against a railroad for personal injuries, where such passenger had been thrown by the sudden stopping of the train, striking with his shoulder and chest, breaking two ribs, etc., had suffered pain, and had been incapacitated for his work, which was that of river guard for the government at a salary of $90 a month and $30 for horse feed, for not longer than two wfeeks, there being only slight probability that he would lose time .from work in the future, a doctor, testifying that the probabilities were that the shoulder would/be more or less impaired; although in the three months between the injury, and the trial it had improved so as to enable plaintiff to saddle his horse, a verdict for $9,000 was excessive, and clearly the result of passion and prejudice:
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. &wkey;130.]
    Appeal from District Court, Presidio County; W. C. Douglas, Judge.
    Action by Charles A. Craighead against the Galveston, Harrisburg & San Antonio Railway Company. Judgment for plaintiff for $9,000, and defendant appeals.
    Reversed and remanded.
    Beall, Kemp & Nagle, of El Paso, and Baker, Botts, Parker & Garwood, of Plouston, for appellant. Belcher & Sutton, of Marfa, and Jones & Thurmond, of Del Rio, for appellee.

       For opinion on motion for rehearing, see 175 S. W. 1199.

   HARPER, C. J.

This is a suit by Charles A. Craighead against the Galveston, Harrisburg & San Antonio Railway Company, to recover damages for personal injuries alleged to have been sustained by plaintiff while a passenger on one of defendant’s trains. Plaintiff alleged that defendants’ employes brought its passenger 'train to a sudden stop, and that he was thereby thrown against the arm or some other portion of the berth of the Pullman car, striking same with his right shoulder and chest, and that by reason of the severity of the impact, the shoulder, right arm, chest, and lungs, etc., were seriously and permanently injured. The defendant denied liability, and specially pleaded that if plaintiff received any injuries, they were neither serious nor permanent. The trial by jury resulted in a verdict and judgment for $9,000, from which this appeal is perfected.

The appellee objects to a consideration of appellant’s assignments because they do not comply with the rules, of this court. While, possibly, not strictly in compliance with the rules, they are sufficiently so to require us to pass upon them. In'the five assignments there is really but one question raised, i. e., that the verdict is so excessive as to show that the jurymen were influenced in some other way than by the law and facts.

The testimony relied on to sustain the verdict is fully quoted as follows:

Plaintiff, Craighead:

“When the train stopped, it throwed me forward, and I struck something hard, and the effect it had on me was it hurt me. It numbed me for some little bit, it kind of made me sick. I didn’t have good use of my arm. It was numbed. I tried to pick up a suit case with my right arm and could not do so. I picked up a hat box, with just a lady’s hat with my right hand, and took a suit case in my left. I went straight home from the train. When I got home, the effect of the lick was it made me kind of sick. My shoulder swelled some, just in a few minutes. I remained at home that morning, sent for Dr. Mahon about 10 o’clock, was hurt about 5 o’clock. The reason I did not send for a physician before was I didn’t know there was anything broke. I just felt it was a jar, a bruise, and it wouldn’t amount to much, tried treatment, first my wife rubbed some liniment on it. The pain had increased right smart before I sent for a doctor. When the doctor got there he told me there was a rib broken, bandaged it up, and the bandages remained on it for 12 days or two weeks. The effect of the injury is that I have no strength in the right arm. I can’t do any heavy work or lifting. I can’t handle a rope, can’t use a Winchester from that shoulder, as I ought to, can’t hardly saddle my horse; it is just here the last few days that I got so I can push saddle up, when I attempt to do that it hurts, it hurts any time I try to use it, it hurts all the time a little when I am riding, I haven’t got very good use of the arm in handling it, lots of time I go to put my hand and miss what I go to put it on. I can’t handle a pistol without I take both hands, and I can’t get my pistol quick with that hand at all. I suffer pain at night; if I turn over on that shoulder at night it begins to ache right away and wakes me up, and 1 generally have to get up and sit up awhile. If I sleep sound all night I have to lay on my left side. I went back to work in 12 or 14 days after the injury. I haven’t missed any time from my work. I am a river guard for the government, get $90 per month wages, and $30 per month for horse feed. There has been no complaint that I am not earning my wages.”

The accident happened on April 15th, and judgment was entered August 18th, same year, 1914.

Dr. Hardy, for plaintiff:

“I know O. A. Craighead, the plaintiff in this case, and have made a physical examination of him. I examined him about two weeks ago in my office, and again this afternoon. At my examination of plaintiff two weeks ago I found there was atrophy of the scapular muscles and tenderness over the scapular and clavicular regions (the scapular is the shoulder blade and the clavicular the collar bone) and partial loss of function of the right shoulder joint, I mean that he is unable to use it fully, completely, and accurately. I found a difference in measurement from the median line over the right shoulder and the left; the difference I found was one inch; the right side was the smaller. The effect of atrophy of the muscles of .the scapular would have on the arm and shoulder would depend. on the degree of the atrophy, it would impair the usefulness of the shoulder and strength.
“Q. What was his ability to use the arm and his shoulder? A. The movements of the right arm were slow, evidently painful, and rather uncertain. I have examined the plaintiff with a view to determining the probable consequence of his condition, and my opinion 'is the probability is that he will never fully regain the use of his arm and shoulder; the probable effect is that his shoulder will be more or less impaired. I mean that it will be loss of strength, partial loss of functions of the shoulder and arm.
“Q. What effect do you think it will have in the future upon his ability to swing a rope in roping wild animals? A. Well, probably he will not be able to do it as skillfully as he once did. The probabilities are that the nerves of the arm have been permanently impaired.
“The reason I examined the patient was that he came to my office and requested me to do so, to my office at Alpine. Yes, sir; I examined him again to-day. No, sir; I have not been paid for my services yet. Tes, sir; pain is a subjective symptom. Yes, sir; we medical men have what we call objective symptoms and subjective symptoms. Objective symptoms are symptoms you can determine yourself; you are not limited though to seeing and feeling. Subjective symptoms are symptoms that you determine by what the patient tells you. Yes, sir; pain is principally a subjective symptom. Under certain circumstances, yes; you can look at a man or any portion of his anatomy and tell whether or not he is suffering. Eor instance, suppose that you have a painful shoulder, one that causes you pain when you move it; I can divert your attention and move that arm constantly, and I elicit pain before you have time to make up your mind whether you are going to suffer pain or not. No, sir; that is not just my idea about that. The reason I know that you haven’t made up your mind is because I don’t think you can make up your mind quite that quickly. No, sir; I deny that it is a fundamental primary principle of medicine that you can’t tell whether a man is suffering pain, except what he tells you. It is not always a fact that you can only tell when a man is suffering by what he tells you. The reason I said that he evidently suffered pain instead of saying he did suffer pain is because in my profession, Mr. Kemp, we don’t make absolute ' statements without absolute grounds for them. Yes, sir; I found slowness of motion, of movement; that is an objective symptom. Yes, sir; I could tell that by looking at him; I could tell it by looking at him by having him perform certain motions.
“Q. But after all, didn’t he control his motions? A. Yes, sir.
“You remember that I didn’t state definitely that there was a slowness of motion; I said that there was evidently. I meant to imply that the motions that I had had this man go through were performed with slowness and evident pain; I didn’t say that he was absolutely unable to move otherwise than slowly. Certainly, so far as I know, Mr. Craighead could have made this movement slowly or he could have made it rapidly; that is true. Yes, of course, you could tell me that you were suffering pain, for instance, in your hip, and you may move your hip naturally or unnaturally, and I could not tell whether you were doing it purposely or not, but any good physician can tell whether you are assuming this movement or not; he can tell; he can trick you into it, you know; you can’t keep up this deception always; you can’t keep up the deception all through the examination. It is very difficult, yes, to tell whether a man is making motions voluntarily or involuntarily in a certain way.
“Q. And if I come and tell you that I have pain here in my hip, you have got to depend on what I say, haven’t you? A. To begin with, yes.
“Well, yes, I would conclude that if you were telling me the truth something was wrong with the hip until I found out for myself; you could pretend that you had a pain whether you had or not, Mr. Kemp, but you would, certainly before a skillful physician would get through with you, he would determine whether you did or not; one of the simplest methods of determining is the one that I spoke of a while ago; assume that you did have; agree with you; divert your attention, and then suddenly make a movement that you describe that causes pain, and then by watching your expression,, you being off guard, he could certainly determine whether you had pain; that is one of the methods. I think you would get off guard; yes, that is, assuming that you would get off guard. I said in answer to Mr. Thurmond’s question that there would probably be always some impairment of the shoulder in his particular case; no, I wouldn’t say as a fact there will be.
“Q. Even if you were correct in your diagnosis, he may ultimately recover? A. I am unable to state. My opinion, as stated by my answer to that question, is that he will probably have some loss of function, permanent loss of function. In •neuritis — you may have destruction of the nerve, in which, of course, the pain ceases, or the ultimate recovery of the nerve; with the destruction of the nerve other muscles possibly take some of the work, perform some of the work of the muscles, in which innovation has been destroyed.
“Q. He says now that he is better; he says now that he is in better position — to take his own testimony — that he can do more now than he ever could; he can put his saddle on his horse now, and for a while he couldn’t. Wouldn’t that indicate an improvement? A. Certainly, if before he couldn’t put a saddle on his horse and now he can, that indicates improvement, yes.
“Q. If a man received a blow on the morning of the 15th of April severe enough to wrench the muscles of his right shoulder, right arm and shoulder and the tendons, ligaments and nerves, and it tore them and stretched them and lascer-ated them and shocked them, and it broke his shoulder blade and tore two of the ribs on his right side loose from the breast bone, that man would be badly injured, wouldn’t he? A. He would be painfully injured, yes. Yes; he would be painfully injured.
“I don’t know if he would feel like sending for a doctor pretty soon after the injury. It depends on how resistant he is to pain. I don’t know if the average man with two ribs tom loose from the breast bone and a broken shoulder blade and his muscles wrenched and torn would be sending for a doctor .pretty quick; I have seen them send for a physician for very much less injuries, and I have seen them fail to send for much greater. Sometimes tearing of the ribs from the breast bone is pretty painful; it depends on how much dislocation there is. I am totally unacquainted with the amount of the injury, of the original injury. If he can put his saddle on his horse now when some time ago he couldn’t, it is a clear indication of improvement, that is, if he is doing it with the same shoulder certainly.
“Yes, sir; I made measurements of his shoulders and found a difference of one inch; I measured from the median line around the shoulder from the median line of one side, from the su-persternal notch here to a point there, around the shoulder, then around on this side, and the left side is one inch greater in circumference than the right side. In my opinion, the cause of that was atrophy of the scapular muscles. The scapula is this big flat bone back here, the shoulder blade, yes.
“No, sir; as a matter of fact, human beings, as a rule, are not symetrical as a rule; yes, sir, we are all bigger on one side than on the other, and it is true that the bridge of our noses is not always in the middle, and one eye is closer to the middle of the nose than the other; yes, and probably almost invariably one leg is shorter than the other with most people. Yes; you often find a difference in the measurement of a man from his naval around one way and from his naval around the other way. One inch difference is probably not greater than it is frequently in normal men, this one inch difference. No, sir; there is not a difference in the size of the plaintiff’s arms, no difference in the size of his arms.”

We think the assignments must be sustained on the ground that the verdict cannot be accounted for by any reasonable view of the evidence. Giving full credence to the positive testimony of the plaintiff and Dr. Hardy, his injuries were to some extent serious, in the sense that they were painful, but .not such as to incapacitate him for labor, at least for longer than 12 or 14 days. There had been no loss of time from his occupation up to the time of the trial, and slight, if any, indication that there will be loss in the future in this respect. True, the doctor testified that the probabilities are that the. shoulder will be more or less impaired in the future, but in the three months’ time between the injury and the trial it had so improved that he could push his saddle upon his horse, indicating a gradual and substantial improvement in its condition. There is no evidence in the record that the use of the arm will be further impaired than it now is, but the indications clearly are that it will' continue to improve. In fact, at the time of the trial, a sufficient time had not elapsed to enable any one to. determine the question of the probable permanency of the injury. The evidence and amount of the verdict clearly show that the jury was influenced by passion or prejudice.

The cause will therefore be reversed and remanded for a new trial.
      ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FREEMAN et al. v. W. B. WALKER & SONS.
    (No. 5396.)
    (Court of Civil Appeals of Texas. Austin.
    March 24, 1915.)
    Appeal and Eeeob <@=643 — Recoed on Appeal — Motion foe Ceetioeaei — Time to File.
    A motion for certiorari, directed to the clerk of the county court, to send up a copy of original citation, filed nearly 11 months after filing of transcript, comes too late, within Courts of Civil Appeals rule 8 (142 S. W. xi) providing that motions as to informalities in the manner of bringing a case into court shall be filed within 30 days after filing of transcript.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2791-2794; Dec. Dig. <S=> 643.]
    Appeal from Travis County Court; Wm. Von Rosenberg, Jr., Judge.
    Action between Thos. J. Freeman, receiver, and another, and W. B. Walker & Sons. From a judgment for the latter, the former appealed, and filed a motion for certiorari.
    Motion overruled.
    Fisher & Fisher and Robt. L. Thompson, all of Austin, for the motion. ,
   RICE, J.

Appellants have filed a motion for certiorari, directed to the clerk of the county court, to send up a copy of the original citation, which motion was filed in this court on the 5th day of March, 1915. The transcript in this case was filed in this court on April 6, 1914. Rule 8 (142 S. W. xi) for the guidance of this court provides that:

“All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within 30 days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the parties.”

As the motion in this case comes too late, the same is, in all things, overruled. See, álso,' rules 9 and 10 (142 S. W. xi) for guidance of Courts of Civil Appeals, Harris’ Annotated Rules of the Courts. For which reasons the motion is overruled.
      ©ssPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes


text:
    FREEMAN et al. v. W. B. WALKER & SONS.
    (No. 5395.)

    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1915.
    Rehearing Denied March 24, 1915.)
    Appeal from Travis County Court; Wm. Yon Rosenberg, Jr., Judge.
    Action between Thomas J. Freeman, receiver, and another, and W. B. Walker & Sons. From a judgment for the latter, the former appeal.
    Affirmed in part and reversed in part.
    Fisher & Fisher and Robt. L. Thompson, all of Austin, and Wilson, Dabney & King, of Houston, for appellants. F. C. Morse and A. S. Phelps, both of Austin, for appellee.

       Writ of error pending in Supreme Court.

   RICE, J.

The parties to this case being the same as, and the issues involved being identical with, those in the case of Thomas J. Freeman, Receiver, et al. v. W. B. Walker & Sons, No. 5396, 175 S. W. 1133, this day decided by this court, except as to the time of shipment, the amounts involved, and the place from which shipment was made, therefore, for the reasons stated in disposing of said case, the judgment in this case is affirmed in part and in part reversed ' and rendered.


author: WALTHALL, J.

text:
    CLOYD v. SACRA.
    (No. 413.)
    (Court of Civil Appeals of Texas. El Paso.
    March 18, 1915.
    Rehearing Denied April 15, 1915.)
    1. Venue <§=>8 — Place of Trial — Privilege of Defendant — Statutory Provisions — Feaud.
    A petition, which alleges a parol contract of purchase by defendant of steers of plaintiff, and which avers that defendant knew of the fluctuating tendency of the market, and that he entered into the contract for the fraudulent purpose of prohibiting plaintiff from selling the cattle to other purchasers, does not allege fraud within Rev. St. 1911, art. 1830, subd. 7, providing that no person shall be sued out of the county in which he has his domicile except in actions for fraud, suit may be brought in the county in which the fraud was committed, and: defendant’s plea of privilege to be sued in the county of his domicile must be sustained.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 17; Dec.' Dig. <§=>8.]
    2. Pleading <§=>111 — Place of Trial — Privilege of Defendant — Burden of Proof-Fraud.
    Where plaintiff instituted an action in one county and admitted in his pleading that defendant resided in another county, but relied on fraud to sustain the venue, he has the burden of proving fraud, or defendant’s plea of privi-, lege must be sustained.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 234-236; Dec. Dig. <§=>111.]
    Appeal from Midland County Court; J. H. Knowles, Judge.
    Action by T. A. Sacra against George W. Cloyd. From a judgment for plaintiff, defendant appeals.
    Reversed.
    J. M. Caldwell, of Midland, for appellant. Earl Anderson and Chas. Gibbs, both, of Midland, and S. P. Weisiger, of El Paso, for ap-pellee.
   WALTHALL, J.

Appellee, T. A. Sacra, brought this suit against appellant, George W. Cloyd, in the county court of Midla.nd county, Tex., and alleged the residence of appellee to be in Deaf Smith county, Tex.; that on the 3d day of November, 1913, he owned 150 head of steers and entered into a parol contract of sale of same with appellant, by the terms of which he sold said steers to appellant for $50 per head, the appellant agreeing to receive and pay for same at Odessa., Ector county, Tex., on the 7th day of November, 1913; that in accordance with the terms of said contract of sale and in full compliance therewith, he rounded up said herd of steers at Odessa, Tex., and notified appellant; whereupon appellant requested the appellee to hold said steers in readiness for shipment from said point; and that in compliance with said request he held the steers in readiness for shipment at Odessa until, the 15th. day of November, 1913, at which time he demanded that appellant receive and pay for the cattle under said contract of sale, but that appellant wholly failed to do so. Appellee sued, itemizing the damages claimed, aggregating the sum of $892.50. Appellee further alleged:

“That, at the date of said contract, the market on steers such as these were had a fluctuating tendency, and that the defendant knew that the market value of said steers might be much higher or much lower at the contemplated date of delivery, and that defendant so entered into said contract of purchase for the fraudulent purpose of prohibiting plaintiff from selling said steers to other purchasers and for the fraudulent purpose of compelling plaintiff to deliver said steers to' defendant at the contract price of $50 per head, if the value of said steers increased.”

. The petition alleged confidence in appellant and reliance upon his representations and belief that he would receive and pay for the steers as agreed, and, “by reason of said representations so falsely and fraudulently made by the defendant, plaintiff was thereby induced to refrain from, and did refrain from, selling the said steers to other purchasers as he would have and could have done, but for the false and fraudulent representations of defendant.” The petition alleged:

“That the said false and fraudulent representations so made by the defendant were made in Midland county, Tex., and the said fraud was perpetrated in Midland county, Tex., and thereby jurisdiction of this cause of action was conferred upon the county court of Midland county, Tex.”

The appellant pleaded his privilege to be sued in the county of Deaf Smith, Tex., and for the purposes of the plea appeared and alleged his residence at all times to have been in that county, and that none of the exeep-tions to'the exclusive venue in the county of one’s residence mentioned, in article 1830 or article 2308 of the Revised Statutes exist, and that no such fraud is shown by the pleadings of the plaintiff or exists as would bring the cause within the purview of section 7 of said article 1830. The plea was verified. The defendant offered in evidence on his said plea, plaintiff’s original petition, the citation of Deaf Smith county, the sheriff’s return showing service in Deaf Smith county, plaintiff’s first amended original petition, alleging residence of defendant in Deaf Smith county, and the verification of the petition. The county court heard the plea of appellant to be sued in Deaf Smith county and the evidence, and overruled the plea, to which appellant excepted and took a proper bill of exceptions. The case was then heard, a jury waived, and the court, on the proof offered, rendered judgment for appel-lee for $750.

As the appeal in this case will be. determined on appellant’s first assignment of error to the overruling of the plea to be sued in the county of his residence, we need not State more of the pleadings or evidence. Ap-pellee alleged the residence of appellant to be in Deaf Smith county, Tex., and undertook to fix the jurisdiction of his suit for damages growing out of an alleged • breach of a parol contract of sale of cattle in Midland' county, under subdivision 7 of article 1830. The article provides that:

. “N,o. person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to Wit: * * * (7) In all cases of fraud, * * * in which cases suit may he instituted in the county in which the fraud was committed,. * * * or. where the defendant has his domicile.”

The only fraud alleged in the pleading is stated to be the fluctuating tendency of the market on steers and appellant’s knowledge of that fact and that appellant entered into said contract of purchase for the fraudulent purpose of prohibiting appellee from selling the steers to other purchasers and of compelling appellee to deliver said steers at the contract price, if the value of said steers increased. It occurs to us that the two purposes stated do not show fraud. Certainly, knowledge of the fluctuating tendency of the market on steers does not show fraud. A contract to buy with that knowledge would not rest in fraud; although the contract would put the seller under obligation to deliver the steers sold to the buyer. It seems that would be the purpose of a contract. The petition then alleges that appellant had the purpose of compelling the appellee to deliver said steers at the contract price if the value of the steers increased. Whatever may have been his purpose, on a contract of sale appellant would have had that right. The petition does not allege that appellant proposed to carry out the contract of purchase only in the event of ah increase in value of the steers. It was by-the pleadings of both appellant and appellee an uncontroverted fact that appellant had his domicile in Deaf Smith county. The ap-pellee sought to deprive appellant of his right to he sued in the county of his residence by the allegation of fraud committed by him- in the matter of the contract for the purchase of the cattle in Midland county. The right -of the appellee to maintain the suit in Midland county depended upon the existence of facts constituting the fraud, which must not only be alleged but proved. Hilliard et al. v. Wilson, 76 Tex. 180, 13 S. W. 25; Cannel Coal Co. v. Luna, 144 S. W. 721; Seley v. Whitfield, 46 S. W. 865; Pecos & N. E. Ry. Co. v. Thompson, 167 S. W. 801; Durango Land & Timber Co. et al. v. Shaw, 165 S. W. 490. As the plaintiff was the one seeking to sustain the venue and had alleged facts tendering the issue which, in His judgment, constituted the exception to the general rule of venue, the burden of the proof on the issue, under the authorities above recited, was on the plaintiff. He offered no proof on the issue of fraud, and defendant’s plea should have been sustained.

The judgment of the county court of Midland county will be reversed, and it is the order of this court that the venue of this case be changed to Deaf Smith county, and the county clerk is hereby directed to make up a transcript of all orders made in said cause and certify officially to same under the seal of the county court of Midland county and transmit the same with the original papers in the cause and the mandate of this court to the clerk of the county court of Deaf Smith county, Tex.
      ^=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    CITIZENS’ WATER CO. et al. v. McGINLEY et al.
    (No. 434.)
    (Court of Civil Appeals of Texas. El Paso.
    April 8, 1915.)
    1. Appeal and Error <@=»544 — Statement of Facts — Review—Findings op Fact.
    In the absence of a statement of .facts, the findings of fact cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. 544.]
    2. Deeds <©=»161 — Conditions—Time of Performance — Reasonable Time.
    No time being specified for the drilling of a well, which a deed makes part of the consideration, and, failing to do which, provides that the land shall be reconveyed for the same money consideration paid, the law implies that it shall be done in a reasonable time.
    [Ed. Note. — For other cases, see Deeds, Cent: Dig. § 518; Dec. Dig. <S=»161.]
    3. Deeds- <§=»165 — Consideration—Failure— Reconveyance.
    Under a deed requiring the grantee, as part of the consideration, to drill a well within a reasonable time and, failing to do so, to reconvey for the same money consideration, the grantor has a right to a reconveyance on such failure, then tendering the money.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. § 521; Dec. Dig. €==>165.]
    4. Deeds €=>147 — Conditions—Mutuality.
    There is no want of mutuality in the contract evidenced by a deed requiring the grantee within a reasonable time to drill a well as part of the consideration and, failing to do so, to reeonvey for the same money consideration as was paid.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 473-477; Dec. Dig. €=>147.]
    5. Deeds €=168 — Condition Subsequent— Forfeiture.
    An estate held on condition subsequent is defeated when the condition is broken and the grantor makes entry with intent to forfeit the grant; the estate thereby being reinvested in him, so that thereafter he may convey to another.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 526-533; Dec. Dig. €=>168.]
    6. Specific Performance €=17 — Rights Assignable-Reconveyance of Land.
    If a provision of a deed does not make the estate granted one on condition subsequent, which may be defeated by re-entry, but is a mere agreement to reeonvey on certain contingencies, the right to enforce specific performance of it is assignable.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 38-A6; Dec. Dig. €= 17.]
    Appeal from District Court, Terrell County; W. C. Douglas, Judge.
    Action by the Citizens’ Water Company and another against Edward McGinley and another. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    A. T. Folsom, of Sanderson, for appellants. Boggess & Smith, of Del Rio, for appellees.
   HIGGINS, J.

The Citizens’ Water Company and its president, W. D. Hunter, brought this suit against Edward McGinley and N. G. Rawls in trespass to try title. The case was tried without a jury, and judgment rendered in favor of defendants.

Findings of fact and conclusions of law were filed by the trial court as follows:

“Findings of Facts.
“(1) On October 24, 1912, defendant N. G. Rawls executed and delivered to the Citizens’ Water Company, a joint stock company, a warranty deed to the land sued for herein, which said deed recited that it was made for a consideration as follows: ‘In consideration of the sum of fifty dollars to me in hand paid by the Citizens’ Water Company, the receipt of which is hereby acknowledged and for the further consideration that the said the Citizens’ Water Company obligate themselves to drill a well upon the tract of land herein conveyed and to furnish to this grantor at all times after the completion of said well free water for the use of the blacksmith shop owned by this grantor and sufficient for all requirements and failing to comply herewith, they, the Citizens’ Water Company, obligate themselves to reeonvey back to the said N. G. Rawls, the land herein granted and sold for the same consideration of fifty dollars.’
“(2) On October 17, 1913, defendant Rawls took possession of the property (the same then being vacant, unimproved, and unoccupied property) and fenced the same, he having previously tendered to W. D. Hunter, the president of the said Citizens’ Water Company, the sum of $50 in cash- and having demanded of said Hunter a reconveyance of said property to himself.
“(3) I find that plaintiffs did not drill within a reasonable time after October 24, 1912, and had not on October 17, 1913, drilled a well upon the premises in question and did not at any time furnish or offer to furnish the said N. G. Rawls with water for his blacksmith shop, and the evidence discloses that the said Citizens’ Water Company did not use reasonable diligence towards having the well drilled as per said covenant.'
“(4) On October 28, 1913, N. G. Rawls executed and delivered to defendant E. McGinley a warranty deed to the land in question.
“Conclusions of Law.
“(1) I conclude that the Citizens’ Water Company obligated itself in said deed to drill a well upon the premises conveyed to it within a reasonable time after the delivery, of said conveyance (October 24, 1912) and to furnish the said N. G. Rawls with water as there stated.
“(2) The Citizens’ Water Company, having failed within a reasonable time to carry out the aforesaid obligation, assumed, in the acceptance of said deed, the said N. G. Rawls had a right, as per the express terms of said deed, to a reconveyance of said premises upon the payment or tender of payment, by him of the sum of $50.
“(3) Under the findings of fact and conclusions of law aforesaid, defendant E. McGinley, as the vendee of N. G. Rawls, is entitled to recover the said land.”

Opinion.

In the absence of a statement of facts, the findings of fact cannot be reviewed. For this reason, the first assignment is overruled. The remaining assignments read:

Second: “The court erred in holding, in the first paragraph of conclusions of law, that the Citizens’ Water Company obligated itself to drill a well upon the premises in controversy within a reasonable time' after the delivery to it of the conveyance to said property.”
Third: “The court erred in holding, in the second paragraph of conclusions of law, that, the Citizens’ Water Company having failed to drill a well within a reasonable time, N. G. Rawls had a right to reconveyance of the property in controversy upon the payment or tender of payment by him of the sum of $50.”
Fourth: “The court erred in holding, in the third paragraph of conclusions of law, that E. McGinley, as vendee of N. G. Rawls, is entitled to recover said land from plaintiff the Citizens’ Water Company.”

No time being specified within which the well was to be drilled, the law implied that it should be done in a reasonable time; and, the company having failed to do so, Rawls had the right to demand a reconveyance of the premises upon tender of $50. There is no want of mutuality in the contract evidenced -by the deed.

In support of the fourth assignment, it is urged that the agreement to drill a well on the premises and furnish water to Rawls was a covenant personal to Rawls and was waived by his conveyance to McGinley, leaving the Citizens’ Water Company, the owner of the premises, discharged of its obligation to drill and furnish water.' Under any view which may be taken of this assignment, it must he. overruled.

An estate held upon condition subsequent is defeated when the condition is broken and the grantor makes entry upon the premises with intent to forfeit the grant. It is true this right of entry is' personal to the grantor and his heirs, and cannot be aliened or assigned; but in the case at bar, when thé condition was broken, the entry was made by the grantor himself, $50 tendered as the contract provided and a reconveyance demanded. The estate was thereby reinvested in him. 1 Warvelle on Vendors (2d Ed.) §§ -446, 447; 2 Washburn on Real Property (6th Ed.) §§ 953-958. Obviously he could then convey the premises to MeGinley.

On the other hand, if we consider the grant to appellant as being not upon condition subsequent, but rather in the nature of an agreement to reconvey upon certain contingencies (if this can be differentiated from a condition subsequent), then, under the deed, the company had obligated itself to reconvey the premises to Rawls in the event it failed to drill a well within a reasonable time and furnish water for the use of the blacksmith shop owned by the grantor freé of charge. Upon failure so to do, Rawls had the right to demand specific performance of the agreement to convey, and, if his interest was more than a mere right of re-entry for breach of condition subsequent, it was assignable and passed by his conveyance to MeGinley; it being well settled that the right to enforce specific performance of an agreement to convey is assignable. 4 Cyc. 14; 36 Cyc. 758, 759.

For the reasons indicated, the trial court did not err in the legal conclusions which it deduced from the facts found.

Affirmed.
      <@uu>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      €=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    NORWICH UNION FIRE INS. SOCIETY v. DALTON.
    (No. 5398.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 5, 1914.
    On Motion for Rehearing, Jan. 20, 1915.
    On Motion for Rehearing of Plaintiff in Error, March 3, 1915.
    Rehearing Denied April 14, 1915.)
    1. Insurance <$=>132 — “Binder.”
    A “binder” is a verbal contract of insurance in prsesenti, of which the insurance agent makes a memorandum, temporary in its nature, and intended to take the place of an ordinary policy till the same can be issued.
    (Ed. Note. — For other cases, see Insurance, Cent. Dig. § 210; Dec. Dig. <§=>132.]
    On Motion for Rehearing.
    2. Insubance <g=>132 — Cancellation and Substitution of -Binders — Authority oe Agents.
    The mere request of insured to insurance agents to keep him protected may authorize them, without notice to him, to cancel a binder in one company, and issue one in another company, if in so doing they are following the custom of all insurance offices.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 210; Dec. Dig. <$=>132.]
    3. Insurance <$=>94 — Un authorized Insurance — Ratification.
    If insurance agents are not authorized to effect insurance, it cannot be made effective by being ratified by insured after the fire; as ratification must be at a time when a valid contract could be made.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 124; Dec. Dig. <$=>94.]
    On Motion for Rehearing of Plaintiff in Error.
    4. Appeal and Erro» <$=>1178 — Disposition op Case — Remand fob New Tbial.
    Though there was testimony of a custom which could make valid the insurance contract sued on, yet, it having been an irresponsive answer, and the custom not being referred to in the pleadings, and not appearing to have been considered at the trial, and no issue as to it having been submitted to the jury, the judgment on a general verdict for plaintiff will be reversed, and the case remanded for new trial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4604-4620; Dec. Dig. <$= 1178.]
    Error from District Court, McLennan County; Richard I. Munroe, Judge.
    Action by Orate Dalton against the Norwich Union Fire Insurance Society. Judgment for plaintiff, and defendant brings error.
    Reversed and remanded for new trial.
    Wm. Thompson, of Dallas, and Jno. S. Patterson, of Austin, for plaintiff in error. Witt & Saunders and Williams & Williams, all of Waco, for defendant in error.
   Findings of Fact.

JENKINS, J.

(1) On September 17, 1912, and thereafter until its destruction by fire, defendant in error was the owner of the property alleged to have been insured by plaintiff in error.

(2) On said date defendant in error applied to, and obtained from, Friedlander & Ludde, insurance agents in Waco, where defendant in error and Geo. S. McGee reside, additional insurance in the sum of $5,000 on the building subsequently burned. This was all the business transaction that defendant in error ever had with said agents, except as hereinafter set out.

(3) On November 6, 1912, defendant in error phoned Friedlander & Ludde that he had sold the building to Geo. S. McGee, that the deed had been executed and placed in escrow, and that he desired $5,000 additional insurance in favor of McGee and of himself as mortgagee, and that he would call the next day and furnish the' data from which to write the policy. A clerk in said agents’ office replied that the request would be granted, and immediately made the following memorandum in the book kept for such purpose:'

“November 6, 1912. Crate Dalton policy $5,-000.00 in F. F. transferred to Geo. S. McGee, purchaser; also write $5,000 additional insurance separate binder in Ga. Home and N. B. M.”
By “N. B. M.” was meant North British & Mercantile Insurance Company. At the same time he addressed a letter to each of ¡¡aid companies, advising them of the binders, and stating that a daily report would follow on 'the morrow,

■ (4) On the next day defendant in error met Eriedlander on the street, and was informed by him that the binders had been written for $2,500 in each of the companies above named. Defendant in error replied that the deal had not been consummated, but was still pending, and reguested Eriedlander to keep him and McGee protected until such time as he might notify him how the policies should be written. Eriedlander promised to do so.

(5) On November 9th defendant in error called at the oflice of Friedlander & Ludde, and inguired if the policies had been written, and was informed that they had not, but that the binders were still in force. He stated that the trade with McGee was being held up, and reguested that no policies be issued for the present, but that in the meantime the property be protected. To this said agents assented.

(6) On November 11th, about 2 p. m., Eried-lander & Ludde received from the North British & Mercantile Insurance Company the following telegram:

“Please cancel binders sanitorium building favor McGee. Letter explains.”

The building upon which the binders had been issued was known as the Sanitorium. They immediately drew a pencil mark through “N. B. M.” as written in the memorandum, and interlined above it “Nor. Un.,” meaning thereby the Norwich Union Eire Insurance Society, and also addressed a letter to the general agents of plaintiff in error at Galveston, Tex., advising them that they had bound plaintiff in error in the sum of $2,500 on said property, and also addressed a letter to the North British & Mercantile Company advising them that their binder had been canceled.

(7) Defendant in error knew nothing as to any of the facts stated in the preceding paragraph of this statement of facts until after the fire. At the time of his conversation with Eriedlander on November 7th, and afterwards at the time of his conversation with both of said agents in their office, it was not in contemplation of either of said parties that the binder in the North British & Mercantile Company or in the Georgia Home Company would be canceled, nor that any other company would be substituted in lieu of either of such companies, or that any occasion would arise for such cancellation or substitution.

(8) Eriedlander & Ludde were the local agents in Waco of the Georgia Home Insurance Company, the North British & Mercantile Company, and of plaintiff in error.

. (9) On .November 11th, at about 9 o’clock p. m., the property was destroyed by fire.

(10)On November 12th Eriedlander & Ludde wired the general agents of plaintiff in error that the property had been destroyed, which telegram was received by them before notice of binder.

(11) On November 14th Eriedlander & Ludde issued a policy in the Norwich Union for $2,500 on the property in favor of Geo. S. McGee, for the term of one year, with a mortgage clause in favor of defendant in error, and dated the same November 11, 1912.

(12) On November 16th Friedlander & Ludde received a letter from the general agents of plaintiff in error, requesting them not to deliver the policy. On the same day, Friedlander & Ludde received the premium from defendant in error, and remitted the same by letter to the general agents of plaintiff in error, who declined to receive the same, and returned it to Eriedlander & Ludde.

(13) On December 12, 1912, defendant in error made proof of loss to plaintiff in error, and in January, 1913, made proof of loss to the North British & Mercantile Company.

(14) Defendant in error testified upon the trial hereof that he was not claiming the insurance against both the North British & Mercantile Company and plaintiff in error, but only against the one that was legally liable therefor. It was not the'intention of either the defendant in error or of Friedlander & Ludde that both policies should be in force at the same time.

(15) Eriedlander & Ludde, in issuing policies for the North British and for all other companies represented by them, used only the standard form of policy prescribed by the insurance commissioner of the state of Texas, which required five days’ notice in order to cancel a policy, and this would have been in the policy had one been written by them on the North British & Mercantile Insurance Company binder.

Opinion.

A number of legal questions are incidentally involved in this case, but a correct decision herein depends upon the issue as to whether the insurance agents Eriedlander & Ludde were, as a matter of law from the facts stated, authorized to cancel, without the knowledge or consent of the defendant in error, the binder issued by them in the North British & Mercantile Insurance Company, and substitute therefor the binder in the Norwich Union Eire Insurance Society.

The general principles of law involved are well settled, and may be stated as follows:

1. A written memorandum such as was made by the local insurance agents is known in insurance terminology as a “binder.” A binder is a verbal contract of insurance in prsesenti, temporary in its nature, intended to take the place of an ordinary policy until the same can be issued. It is a short method of issuing a temporary policy for the convenience of all parties, to continue, unless sooner canceled, until tke execution of a formal policy. It will be construed as containing all of the provisions of an ordinary policy, including the provision for cancellation. Lipman v. Insurance Co., 121 N. Y. 454, 24 N. E. 699, 8 L. R. A. 719; Cooley’s Ins. Briefs, 2790.

2. When a contract of insurance has been entered into, it cannot be annulled, except by the consent of the parties thereto, unless otherwise provided in the policy. This is but the statement of the elementary law of contracts, and will be found in a number of the cases herein cited, and in all of the textbooks on insurance.

3. Another elementary principle of the law of contracts applicable to insurance is that the property must be in existence at the time the policy is issued. As a corollary to this, the rights of the parties are fixed at the time the property is destroyed. Blake v. Insurance Co., 67 Tex. 165, 2 S. W. 369, 60 Am. Rep. 15; Insurance Co. v. McKenzie, 70 Ill. App. 615; Insurance Co. v. Turnbull, 86 Ky. 230, 5 S. W. 542; Insurance Co. v. Lumber Co., 89 Me. 26, 35 Atl. 1008, 35 L. R. A. 278; Kerr v. Insurance Co., 117 Fed. 447, 54 C. C. A. 616; Hermann v. Insurance Co., 100 N. Y. 411, 3 N. E. 341, 53 Am. Rep. 197; Cooley’s Ins. Briefs, 2790. A policy issued in lieu of another which has not been legally canceled is not a binding contract. Clark v. Insurance Co., 86 Me. 26, 35 Atl. 1008, 35 L. R. A. 276.

4. When one of the conditions for the cancellation of a policy is that notice must be given, the notice must be given for the full time, if any, specified in the policy. Insurance Co. v. Flippin, 4 Tex. Civ. App. 576, 23 S. W. 552; Insurance Co. v. Urbansky, 113 Ky. 624, 68 S. W. 654; Clark v. Insurance Co., supra; Insurance Co. v. McKenzie, 70 Ill. App. 615; Insurance Co. v. King, 108 Ark. 130, 156 S. W. 445; Yoshimi v. Insurance Co., 99 App. Div. 69, 91 N. Y. Supp. 393.

5. In insurance, as in all other contracts, notice to an agent is notice to his principal, but it must be within the scope of his authority to receive such notice. Lumber Co. v. Insurance Co., 158 Iowa, 563, 138 N. W. 504, 51 L. R. A. (N. S.) 539; Clark v. Insurance Co., supra; and other authorities herein cited.

6. A broker who is employed by the insured to attend to all of his insurance, and to keep his property insured, is the agent of the insured for the purpose of receiving notice of the cancellation of a policy, and may waive such notice, and surrender a policy for cancellation, and receive another in lieu thereof. Such authority may be presumed from a long- course of dealing between the parties. Johnson v. Insurance Co., 66 Ohio St. 6, 63 N. E. 612; Hamm v. Insurance Co., 80 Minn. 139, S3 N. W. 41; Dibble v. Insurance Co., 70 Mich. 1, 37 N. W. 704, 14 Am. St. Rep. 470; Buick v. Insurance Co., 103 Mich. 75, 61 N. W. 337; Kerr v. Insurance Co., 117 Fed. 447, 54 C. C. A. 616; Cooley’s Ins. Briefs, 2798; Lumber Co. v. Insurance Co., 158 Iowa, 563, 138 N. W. 504, 51 L. R. A. (N. S.) 539.

7. An agent of an insurance company may act as broker for the insured where his position is known to both parties to the contract, or where his acts are not detrimental to either party, but beneficial to both; as where he is applied to for insurance, and no company is named by the insured, and the risk is such as he would solicit, and he writes the policy in a solvent company. In the latter case his agency on behalf of the insured ceased when he has selected the company and placed the risk. Clark v. Insurance Co., supra; Insurance Co. v. Urbansky, 113 Ky. 624, 68 S. W. 653; Martin v. Insurance Co., 106 Tenn. 523, 61 S. W. 1024; Kerr v. Insurance Co., 54 C. C. A. 616,117 Fed. 446.

8. A broker (including the insurance agent, where he is authorized to act as such for the insured) who is not the general agent to place and manage the insurance business of his principal, but who is employed to secure insurance on certain property, exhausts his authority upon procuring such insurance, and notice to him thereafter, is not notice to the insured. Insurance Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Rothschild v. Insurance Co., 74 Mo. 41, 41 Am. Rep. 305; Hermann v. Insurance Co., 100 N. Y. 411, 3 N. E. 341, 53 Am. Rep. 197; Martin v. Insurance Co., 106 Tenn. 523, 61 S. W. 1024; Cooley’s Ins. Briefs, 2819.

9. A broker such as is mentioned in the preceding paragraph of this opinion has no authority to consent to the cancellation of a policy issued to his principal, nor to issue nor to receive another policy issued in lieu of the policy sought to be canceled. Insurance Co. v. Urbansky, 113 Ky. 624, 68 S. W. 654;. Martin v. Insurance Co., 106 Tenn. 523, 61 S. W. 1025; Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. Ed. 932; Johnson v. Insurance Co., 66 Ohio St. 6, 63 N. E. 612; Clark v. Insurance Co., supra; Quong Tue Sing v. Insurance Co., 86 Cal. 566, 25 Pac. 58, 10 L. R. A. 144; Insurance Co. v. McKenzie, 70 Ill. App. 615; Massasoit v. Insurance Co., 125 Mass. 110; Yoshimi v. Insurance Co., 99 App. Div. 69, 91 N. Y. Supp. 393.

10. Notice by an insurance company to its agent, who is not also the agent of the insured for the purpose of receiving such notice is ineffectual and will not work a cancellation of the policy. Such notice is no more than notice by the company to itself that the policy must be canceled. Insurance Co. v. McKenzie, 70 Ill. App. 622; Insurance Co. v. Turnbull, 86 Ky. 230, 5 S. W. 542; Mill Co. v. Insurance Co., 105 Mo. App. 146, 79 S. W. 721; Lumber Co. v. Insurance Co., 158 Iowa, 563, 138 N. W. 504, 51 L. R. A. (N. S.) 539; May on Ins. (3d Ed.) 117; Cooley’s Ins. Briefs, 2796; Insurance Go. v. King, 108 Ark. 130, 156 S. W. 445.

Applying the foregoing rules of law to the facts of this case, we conclude that Fried-lander & Ludde were not the agents of defendant in error for the purpose of receiving notice of the cancellation of the binder issued by them in the North British & Mercantile Company, nor for the purpose of waiving the five days’ notice required by the implied terms of such binder, nor for canceling said binder and substituting the binder of plaintiff in error in lieu thereof. Therefore the binder in the North British & Mercantile Company was not legally canceled, and the attempted substitution of the binder on the part of the plaintiff in error was void.

As we construe the request of defendant in error, made first to Friedlander on the street, and afterwards to Friedlander & Ludde in their office, to keep him protected and to keep the property protected, it amounted to no more than to let the binders which had theretofore been issued remain in force; and it is apparent from the testimony that these agents so understood those requests at the time they were made. The parties to these conversations admit that they did not have in mind the cancellation of either of said binders, and the substitution of others in their place, nor the probability of any such cancellation or substitution being necessary. If Friedlander & Ludde had not undertaken to cancel the binder in the North British & Mercantile Company without giving the five days’ notice to which defendant in error was entitled, these requests would have been fully complied with, and defendant in error would have had ample time, as the law contemplates he should have had, to place the risk elsewhere'. A request to protect should not be construed as authority to destroy such protection. That the agents believed that they had such authority only shows their misapprehension of the law.

Had the defendant in error known of such cancellation and substitution prior to the fire, and made no objection thereto, it would have constituted a waiver on his part as to the binder in the North British & Mercantile Company, and an acceptance of the binder attempted to be substituted therefor. But, as the rights of all parties became fixed at the time of the destruction of the property, he could not thereafter give vitality to the unauthorized acts of the insurance agents by ratifying the same.

This ease must be viewed in the light of one who may have obtained insurance under circumstances similar to those of defendant in error, except the attempted issuance of the second binder. Had the agents, upon receiving the telegram to cancel the binder, undertaken to have done so without the knowledge or consent of the • defendant in error, and without issuing any other binder, and had the property been destroyed as it was, clearly the defendant in error would have' been entitled to recover on the first binder, for the reason that such binder would have remained in force until he had received five days’ notice of intention to cancel same, unless he had sooner voluntarily surrendered it. If the agents had no authority to cancel the first binder, their attempted issuance of the second one in lieu thereof, without the knowledge or consent of defendant in error, was a nullity.

The case of Insurance Co. v. Turner, 147 S. W. 625, may seem to be against the decision reached by us in this case. In that case it was alleged that the insurance agent was the agent of the insured for the purpose of keeping the property insured, and that “it was his duty to reinsure the house, if for any reason the insurance he had procured for appellee in the Farmers’ & Merchants’ Company should fail or become invalid.” We infer from the opinion that the court found this allegation to be true, and that such policy had failed on account of the insolvency of the company issuing the same. It does not appear to us that this finding was justified by the evidence, but, if so, the decision in that case is correct. We do not so find in the instant case, but to the contrary. It appears from the opinion in the Turner Case that the former policy was attempted to be canceled on account of the supposed insolvency of the company in which it had been issued, and that the company issuing the second policy knew, through its special agent, Hirsch, that it was issuing its policy in lieu of the former policy, without the knowledge or consent of the insured. These facts appear to differentiate the Turner Case from the instant case, but, if they do not, we decline to follow that case.

The disposition which we make of this case renders it unnecessary to pass on other assignments of error.

For the error of the court in refusing to instruct the jury to return a verdict for plaintiff in error, the judgment of the trial court is reversed, and judgment is here rendered for plaintiff in error.

Reversed and rendered.

On Motion for Rehearing.

It is for the court, and not for the parties, to construe the meaning of the language used by them in making a contract. Such being the case, and there being no dispute as to the language used by the parties, we held on a former day of this term that the insurance agents were not authorized to cancel the binder in the North British & Mercantile Company, and substitute therefor a binder in plaintiff in error company. But the ordinary meaning of language may be’ varied by the general usage in a particular business. On motion for rehearing our attention has been called for the first time to the testimony of Mr. Friedlander, one of the insurance agents, who testified that in making such cancellation and substitution he “followed the custom of .all insurance offices.” If such is the fact, and it was not contradicted, the testimony of Friedlander and of Dalton that the agents were authorized to do as they did takes on a different aspect, and amounts to an explanation of the meaning of the language used as interpreted by the general custom in such cases. Every one is presumed to be acquainted with the general custom of the business in which he engages, and to intend that his language shall be construed in reference thereto. If the request of defendant in error to the agents to keep him protected authorized them under the general usage in fire insurance to cancel the binder in the North British & Mercantile Company, under the circumstances shown herein, and to substitute therefor the hinder in the plaintiff in error company, the judgment of the trial court should be affirmed. The jury so found, and the evidence supports their verdict.

We adhere to so much of our former opinion herein as holds that, if the agents were not authorized to effect the insurance sued upon, the same could not be made effective by being ratified by the insured after the fire. A seemingly contrary doctrine is announced by most of the text-writers on insurance, and by a number of eases cited by able counsel for plaintiff in error. Practically all of these writers and opinions hark back to Lucena v. Crawford, 1 Tant. 325; Routh v. Thompson, 13 East. 274; and Hagedorn v. Oliverson, 2 M. & S. 485. Perhaps sufficient attention has not been paid to the fact that these policies were marine insurance, in which property may be insured “lost or not lost”; that a wager policy was valid at common law; and that the policies in those cases were not invalidated by the statute then in force in England. But, aside from this, an examination of those cases will show that they are not authority for the proposition that,, where one, without authority, insures property in the name of the owner, such insurance will be valid, and may be enforced by the owner, if ratified by him after the loss. In neither of said cases did any one take out a policy in the name of the owner, and no suit was brought in the name of the owner. On the contrary, in each of said cases the party effecting the insurance had at such times an insurable interest in the property, and took out the policy and brought suit thereon in his own name. It is true that in each case the insurance was for the benefit of all other persons as their interest might appear. The position of the insured was analogous to that of a warehouseman who takes out a policy on goods stored or to be stored in hi? warehouse owned by him or held in trust, or sold and not removed. In such case he may recover the full value of the goods. In order for the owner or owners to participate in such recovery, or share in the benefits thereof, he must show that he ratified such insurance; but it is immaterial whether the ratification in such case was before or after the loss. By • the terms of the policy, the insured' is trustee for the owners, or whoever may become an owner; and, being the agent of the owner of the property in possession thereof and charged with the duty of preserving the same, he may insure it in his own name, and such insurance will inure to the benefit of the owner, not from the time that he may ratify such insurance, but from the time such insurance is effected until he repudiates the same. It is not a case of ratifying an unauthorized act of one falsely assuming to act as agent, but is the acceptance or rejection of an option granted him by the insurance company, for a valid consideration, at the time the policy was issued, with a knowledge of the facts as evidenced on the face of the policy. As to insurance by ware-housemen, see Waters v. Assurance Society, 5 E. & B. 870; Miltenberger v. Beacom, 9 Pa. 198; Durand v. Thoron, 1 Port. (Ala.) 238; Watkins v. Durand, 1 Port. (Ala.) 251; Waring v. Insurance Co., 45 N. Y. 606, 6 Am. Rep. 146; Pittman v. Harris, 24 Tex. Civ. App. 503, 59 S. W. 1121; Storage Co. v. Dechman, 73 S. W. 545. A like rule for a like reason applies where a part owner insures for himself and his co-owner (Finney v. Insurance Co., 5 Metc. [Mass.] 192,38 Am. Dec. 397), or where one of several joint trustees insures in his own name (Insurance Co. v. Chase, 72 U. S. [5 Wall.] 509, 18 L. Ed. 524).

In Lucena v. Crawford, supra, the insurance was on certain captured ships, and was taken out by the commissioners appointed to take charge of and sell the same. They were instructed by the Lord of the Treasury to take out such insurance on the day it was taken out, and before the loss occurred. In Routh v. Thompson, supra, the insurance was likewise on a captured ship, taken out by the agent of the captors for the benefit of whomsoever might ultimately appear to be interested. In both cases the King was adjudged to be the owner, and the party to whose benefit the insurance inured, if he chose to adopt the same. The formal adoption by order of the Council in the latter case occurred June 30, 1810; the loss occurred in December, 1807. In this case Lord Ellenbor-ough, C. J., said:

“The insurance was effective by order of his [the King’s] officers whose duty it was to take care of the property, and who were responsible to him for i£”

In Hagedorn v. Oliverson, supra, license had been granted to Hagedorn to sail the ship. He was in the constructive possession of the same and had an insurable interest therein. He insured the ship “as well in his own name as in the name of all and every person to whom the same doth or may appertain.” He brought suit in his own name, and alleged that one Schroeder was part owner. No previous authority to insure for Schroeder was alleged, and no ratification was shown, except by a letter written by Schroeder two years after the loss, giving instruc-Rons as to how to invest the insurance money when collected. It was argued that the plaintiff ought not to recover for the benefit of Schroeder, inasmuch as he did not ratify the action of Hagedorn before the loss, and might have repudiated the same. Lord El-lenborough said -that this would be true if the suit had been by Hagedorn against Schroeder to collect the premium. Of course, as Schroeder did not authorize Hagedorn to insure the vessel, if it had arrived safely he might have repudiated the transaction, and he could not be held liable for the premium until he ratified the transaction which he could have done as between him and Hage-dorn after the loss.

“But,” said Lord Ellenborough, “I do not think that consideration governs the case now before us between this plaintiff and the underwriter.”

Le Blanc, J., said:

“This, it must be remembered, is a question between the plaintiff and the underwriter, and not Schroeder and the underwriter.”

This distinction a majority of the authors of text-books on Insurance, and courts not a few have evidently overlooked.

The distinction seems to us to be this: If Hagedorn had sued Schroeder to recover the premium advanced on his behalf, he could have replied:

“I never promised, expressly or by implication, to repay you such premium. You advanced it without my. authority, and I have not ratified your action.”

But when Hagedorn sued the underwriters he was asking only that the written contract between them be enforced. He paid the premium ; they agreed to pay him in the event of loss to the extent of the interest of those for whose benefit such insurance was effected, who were the then owners or who might thereafter become owners. He became the trustee for such owners as ratified his action, and was entitled to recover in his own name to that extent. It was no conpern of the underwriters whéther the owner or part owner ratified such insurance before the loss or afterwards. If the party procuring such insurance had the right to do so in his own name, the contract was closed when he paid the premium and received the policy, and did not need any subsequent ratification to make the same a legal contract. The party advancing the premium could not recover the same back in case of repudiation by the own.er, and neither could the underwriter cancel such policy in the event of such repudiation. That it was a completed contract, and not dependent upon the ratification of the owner to legalize it, was emphasized by the judges participating in the decision of Hagedorn v. Oliverson, supra. Le Blanc, J., said:

“ * * * The plaintiff was bound by the insurance, and could not have recovered back the premium.”

Bailey, J., said:

“A loss has happened upon which the defendant undertook to pay, and^ if the premium could not have been recovered ■ back from the defendant, there is not any circumstance here which should exonerate him from liability. I think the plaintiff never could have recovered back the premium from the underwriter.”

The reason given by these judges as to why the premium could not have been recovered back was the uncertainty whether Schroeder would adopt the insurance. If no risk is incurred, the premium may be recovered back, but, once the risk is incurred, the premium cannot be recovered back. Where the party effecting the insurance has an insurable interest, as in the three English cases supra, and in the warehouse cases above cited, a legal contract exists from the moment the insurance is effected and the risk of being liable to pay the insured to the extent of the interest of the owners who may ratify such transaction exists from that time until he or they shall repudiate the same. On the other hand, where one without authority assumes to act as the agent of another, no risk is incurred until the party for whose benefit such insurance was obtained shall have ratified the transaction.

It is urged that the contract of insurance effected by one assuming to act as agent, but without authority to do so, is valid if ratified after the loss, upon the principle that ratification relates back to the inception of the transaction. This is true where the contract attempted to be ratified is one that could legally have been made at the time of such attempted ratification, but not otherwise, for the reason that in such case there is no contract until ratification. The contract being then made by fiction of law, it is held to relate back to the time when it was attempted to be made by one without authority so to do. Under no definition of a contract known to the law could a contract be said to have been made until the minds of both parties have assented thereto. But a party, having accepted the benefit of á contract attempted to have been made for him, by ratifying same, must accept it as a whole, which includes its acceptance as of the date it was attempted to have been made. In the instant case, if the agents were without authority to insure the property of defendant in error, there was no contract of insurance with plaintiff in error until after the fire, and, the property being then nonexistent, no contract for its insurance could be made. If Dalton could not have made any contract for the insurance of the property after the fire, it follows that he could not then make one that would relate back to a time prior to thq fire.

In addition to the cases above referred to where the insurance was effected by a warehouseman, co-owner, or trustee in his own name for the benefit of all parties in interest, the following cases, cited by defendant in error, are not authority for the proposition that the owner of property may recover on a policy taken out in his name without his authority and of which .he had no knowledge until after the destruction of the property:

In Larson v. Insurance Co., 208 Ill. 166, 70 N. E. 31, Arnfeld v. Assurance Co., 172 Pa. 605, 34 Atl. 580, and Finley v. Insurance Co. (C. C.) 193 Fed. 195, plaintiffs had accepted the insurance money under the substitute policies, and it was held that they could not thereafter recover on the canceled- policy, upon the ground that the agent was without authority to make such substitution. Having received the benefit of the second policy, the insured was estopped to deny its authenticity. In Arnfeld v. Insurance Co., supra, the court likened insurance to a surety on a note, and said that no one should be permitted to recover twice for the same debt, however many instruments of indemnity he may hold.

In Dibble v. Assurance Co., 70 Mich. 1, 37 N. W. 704, 14 Am. St. Rep. 470, in White v. Insurance Co. (C. C.) 93 Fed. 161, in Todd v. Insurance Co., 2 Ga. App. 789, 59 S. E. 94, and in White v. Insurance Co., 103 Fed. 260, 43 C. C. A. 216, the issue was not ratification, but the original authority of the agent. Neither was ratification in the sense in which we are here discussing it, involved in Arnold v. Insurance Co., 106 Tenn. 529, 61 S. W. 1032. There the plaintiff had requested a friend to obtain insurance for him. The policy thus obtained contained a clause that, if additional insurance was procured, it would void the policy. The owner, in ignoranee of the fact that his friend had insured the property for him, took out another policy on the property. In a suit upon the policy procured by the friend it was held that the additional insurance defeated recovery.

In Insurance Co. v. Smithfield, 49 S. W. 412, there was no lack of authority on the part of the mayor to procure the insurance, but, as he was also the agent of the company, it was sought to avoid the policy on the ground of dual agency. Such fact being known to both parties, it wag held that they were deemed to have ratified his acting in such dual capacity. The policy was not void on that account but at most was only voidable.

For the reason that the jury found that the insurance agents, were authorized to cancel the binder in the North ' British & Mercantile Company, and to bind the plaintiff in error in lieu thereof, and that such finding is sustained by the evidence, the motion for rehearing herein is granted, our former judgment herein is set aside, and the judgment of the trial court is affirmed.

Motion granted. Judgment affirmed. ■

On Motion for Rehearing of -Plaintiff in Error.

This case was not submitted to the jury on special issues. The issue as to the general custom of insurance agents under •the facts as testified to by defendant in error and the insurance agent was not submitted in the charge of the court. The testimony as to such custom, though uncontra-dicted and not objected to, was not in response to the question asked. No reference to such custom was made in the pleadings, and it does not appear to have received any consideration in the trial of the case, nor in the original briefs of the parties hereto. For these reasons, we have concluded that this case should be reversed and remanded, in order that the jury might specially pass upon this issue.

The motion of plaintiff in error for a rehearing is accordingly granted, and the case is reversed and remanded for a new trial in accordance with our opinions herein.

Reversed and remanded.
      <gz=For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes