author: RASBURT, J.

text:
    J. W. CROWDUS DRUG CO. v. NICHOLS et al.
    (No. 7681.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1917.
    Rehearing Denied April 21, 1917.)
    1. Contracts &wkey;>214 — Time for Performance — “When Work is Completed.”
    Where a contract for waterproofing plaintiff’s basement provided for final payment “when work is completed,” the time for performance did not end when defendant stated that work was completed, and where defendant made further efforts to repair it, and the time for final payment was such as agreed upon by parties or determined judicially.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 989-995.]
    2. Contracts <&wkey;32Í(4) — Place of Work-Right to Rely on Workman’s Statement-Recovery of Amount Paid.
    Where a contract for waterproofing plaintiff’s basement provided for final payment “when work is completed,” plaintiff could rely on de-. fendant’s representation, that the' work was complete, and, when it subsequently appeared that this was not the fact, could recover amount paid.
    [Ed. Note. — Eor other cases, see Contracts, Cent. Dig. §§ 1509-1518, 1519, 1519½, 1522.]
    3. Contracts <&wkey;305(l) — Place of Work-Right to Rely on Workman’s Statement —Waiver.
    Where plaintiff, after knowledge of defendant’s failure to waterproof basement as agreed, permitted defendant to continue with the work, he waived right to maintain action based upon defendant’s previous representations as to completion of work.
    [Ed. Note. — Eor other cases, see Contracts, Cent.'Dig. §§ 1398-1400, 1407-1475.]
    4.' Contracts &wkey;>212(2) — Construction — Time of Performance — Absence of Stipulation — “Reasonable Time.”
    It is elementary that where a- contract is silent as to time of performance a reasonable time is meant, and what is a “reasonable time” depends upon natux-e and character of the thing to be done and circumstances of the particular case, together with difficulties attending its accomplishment.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 947-951.
    Eor other definitions, see Words and Phrases, First and Second Series, Reasonable Time.]
    5. Contracts &wkey;>176(10) — Reasonable Time for Performance — Question for Jury.
    Unless facts are undisputed, the question of what is a reasonable time, for performance of a contract is for the jury; its determination involving a mixed question of law and fact.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 956, 979; Trial, Cent. Dig. § 326.]
    6. Contracts <&wkey;212(l) — Reasonable Time for Performance — Evidence.
    Evidence, showing that defendant in waterproofing plaintiff’s basement had 10 months within which to complete work, but "only worked about 42 days, and performed the greater part of the work in the first 19 days, defendant testifying that “about a year” was necessary for the work, and it being evident that the time consumed exceeded that which, the parties had contemplated, and. the evidence showing an inability to-do the work rather than insufficiency of time, held to show an allowance of reasonable time for performance.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 944^946, 952-955.]
    Appeal from District Court, Dallas County; Kenneth Eoree, Judge.
    Action by the J. W. Crowdus Drug Company against S. W. Nichols and others. Judgment for defendants, and plaintiff appeals.
    Reversed and rendered.
    Seay & Seay and Ralph W. Malone, all of Dallas, for appellant.- Edward P. Dougherty and Dabney & Townsend, all of Dallas, for appellees.
   RASBURT, J.

Appellant sued appellees Nichols and American Surety Company to recover $650 paid appellee Nichols on his undertaking to repair and make absolutely dry the basement to appellant’s storehouse, performance of which was guaranteed by the Title Guaranty & Surety Company, whose obligation had been reinsured or assumed by appellee American Surety Company, and with which it was alleged appellee Nichols had failed to comply. Appellees’ defense was that appellant denied appellee Nichols a reasonable time in which to complete the repairs and refused him entry into the basement for that purpose. Further, that appellant, due to the fact that it had permitted ap-pellee Nichols to re-enter the basement after all parties had assumed that the repairs had been successfully accomplished, and perform additional work thereon and expend money in that behalf, was estopped from recovering the full amount paid appellee Nichols, but was in law entitled only to recover such amount, less the sum expended after such re-entry.

There was trial by jury to whom the court submitted but one issue, to wit: „

“Was the defendant Nichols prevented by the plaintiff from having a reasonable time for the completion of the work?’’

The jury answered the issue so submitted in the affirmative. Upon such answer, judgment was entered that appellant take nothing by its suit and that the appellees recover their costs.

The substance of the undisputed facts and those deducible from the verdict of the jury essential to the disposition of the issues tendered on appeal are these: The contract between appellant and appellee Nichols .was in the form of a letter addressed by appellee Nichols to appellant dated July 15, 1913, which, omitting address and signature, is as follows:

“I will guarantee that my material and workmanship will make your basement absolutely dry for a period of two years and all work will be done to the satisfaction of owners. I am furnishing a bond for the full amount and it will be in effect for one year. The contract for this work is eight hundred and fifty dollars ($850.-00). Payments to be made as follows: Two hundred dollars on July 19th, three hundred dollars on July 26th, and one hundred and fifty dollars when work is completed, the balance of two hundred dollars to be paid ninety days after completion.”

Appellees Nichols and the surety company executed their joint and several obligations in the sum of $850, the condition of which was to save appellant harmless from any pecuniary loss resulting from the breach of any of the terms, covenants, and conditions of appellee Nichols’ contract with appellant for a period of one year. Appel-lee Nichols entered upon performance of his contract July 14, 1913. On July 18, 1913, he collected $200 named in the contract as payable July 19, 1913. On July 26, 1913, he collected the $300 payable on that date by the contract. On August 2, 1913, he collected the $150 payable by the contract when the work was completed. The remainder'of the contract price was to be paid within 90 days after completion of the contract. When the $150 was paid on August 2, 1913, both appellee Nichols and appellant believed that the work was completed in such manner as to make the basement absolutely dry, and ap-pellee claimed to have “finished” the work at that time, and testified in detail concerning the character and amount of the work done, but says that he notified appellant at the time that it was possible that leaks would subsequently develop. It seems that at that time there was in fact a leak discharging about five gallons' of water in two minutes. However, appellee, about three weeks subsequent to the time he thought the work was finished, on a telephone call from appellant went into the basement and found a few leaks had developed. Subsequently, the basement continuing to leak, appellee worked intermittently on the basement from August 2, 1913, to approximately April 30, 1914, the dates as shown by an itemized statement kept by appellee being September 14, 1913, October 5, 1913, November 11, 1913, December 6, 1913, January 22, 23, and 24, 1914, April 4, to May 9, 1914. In addition to the expense incurred by appellee for the work prior to August 2, 1913, he actually expended in said basement, in a further attempt to repair same so as to make it absolutely dry, the sum of $258. It also appears from the testimony of appellee Nichols that in making such repairs in leaky basements it is impossible to tell when the work is finished, since the stopping of a series of leaks increases the pressure against the weakest portion of the wall or floor and causes same to break at another point, which in turn must be repaired, and that on such jobs it required from two to three weeks for the new leaks to develop. When appellee finished his last work on the basement and had “convinced” himself that the basement was absolutely dry, he received notice from appellant on May 15, 1914, that it had sued him on his contract. While the record fails to show when the suit was filed, the notice appellee refers to was appellant’s letter of that date stating that it had given the surety company formal notice of its intention to hold the surety company on its bond for appellee’s alleged failure to comply with his contract, and the conclusion cannot be drawn therefrom that it was notice of the filing of suit as appellee claims. Subsequent to the foregoing notice, appellee made no attempt to further repair the basement. However, in the following June or July appellee and his attorney and a representative of the surety company and appellant’s attorney were at appellant’s office for the purpose of adjusting the matter of the threatened suit. While there, appellee’s attorney asked appellant’s president, J. T. Berry, if he was willing for appellee to then undertake the work of making the basement absolutely dry. Berry declined. Appellee was willing to again take up the work. The basement was not absolutely dry at that time. Appellee Nichols, after testifying that he was familiar with the time required to waterproof a basement like appellant’s, further testified that “it would take about a year to waterproof” appellant’s basement.

Appellant’s first assignment of error complains of the court’s action in overruling the general demurrer leveled hy appellant against the sufficiency of the pleading upon which appellee went to trial; but, in view of the conclusion we have reached upon a consideration of the second assignment of error, it will not be necessary to consider said assignment or others that follow.

The second assignment complains of the action of the court in submitting to the jury for their determination whether appellant denied appellee a reasonable time in which to complete the work, and several propositions are asserted in that connection; one in substance being that of the time of performance. Appellee’s attitude is that, no time for performance being stipulated by the contract, it became a question of fact for the determination of the jury.

In reference to appellant’s first contention, we conclude that it cannot reasonably be said that the-time for performance ended when appellee demanded the $150. That sum was due upon completion of the work. It did not follow, however, that the work was in fact completed because demand for the payment due at completion of the work was made. True, appellee represented that the work was completed and believed it was, yet very soon afterwards it developed that the work was not complete. Thus on a fair analysis of the contract it is obvious, we think, that the provision of the contract we are discussing merely fixed the time when the $150 should be paid, such time to be agreed upon by the parties or determined judicially. And we also are of opinion that appellant had the right to rely on appel-lee’s representation that he had complied with his contract and so relying would, when it subsequently appeared that appellee failed to do so, have been entitled to recover the amount paid, had he proceeded accordingly. But having agreed, after knowledge of ap-pellee’s failure, that appellee might re-enter upon the work and again endeavor to comply with his contract, appellant waived the right to maintain an action based upon ap-pellee’s representations. As a consequence the question arose: Did appellee, from the inception of the work until the time when appellant refused permission to continue it, have a reasonable time in that respect?

It is elementary that where the contract is silent, as it is in the present case, as to the time of performance, the law infers that a reasonable time was meant. It is said in Hart v. Bullion, 48 Tex. 278:

“What is a reasonable time depends undoubtedly upon the nature and character of the thing to be done, the circumstances of the particular case, and the difficulties surrounding and attending its accomplishment. As an abstract question, what is a reasonable time for performance may be one of law; but, unless the facts upon which its determination depends are admitted, its determination involves a mixed question of law and fact, and must be determined by the jury,” etc.

The effect of appellant’s second contention, in the light of the rule quoted, is to assert that, admitting all the facts developed by appellee’s testimony and found by the jury, it nevertheless appears that he did have a reasonable time in which to perform his contract and failed. The jury having by their verdict adopted appellee’s theory of the facts, the issue raised must be considered from the standpoint deducible from appel-lee’s evidence. Appellee alone testified concerning the character of the work, and the difficulties attending its accomplishment.

While we have stated the facts deducible from appellee’s testimony, we briefly restate them in order to include others tendered in explanation of the delay, to wit: In repairing such a basement as appellant’s, all leaks are first to be located and stopped ; when such leaks are stopped, the hydrostatic pressure of the water is diverted and finds outlet from other portions of the wall where it is weakest, the leaks ordinarily developing in from three weeks to a month, whereupon the new leaks are to be stopped and other possible leaks awaited and those in turn stopped. Or, as appellee puts it, “you just keep fighting them until you get them all stopped.” With such knowledge of the character and manner of doing the work, appel-lee entered upon performance of his contract July 14, 1913, and found “hundreds ,of leaks” in the wall, which he stopped, and which he says constituted 98 per cent, of the leaks. 1-Ie continued his work until August 2, 1914, and at that time had “covered” the entire basement, and at which time the basement was dry save a few damp spots, and at which time he claimed his contract was finished. About three weeks subsequent, in answer to telephone call from appellant, he inspected the basement and found a leak which he repaired. The basement continuing to leak, appellee made repairs therein September 14th, October 5th, November 11th, December 6th, in the year 1913, January 22d, 23d, and 24th, and April 4th, to May 9th, in the year 1914. About this time appellee was of opinion that he had gotten the basement absolutely dry and was awaiting developments. On May 15, 1914, he received notice from appellant that' he had failed in his contract and that appellant would demand of appellee and the surety company a refund of the moneys paid. Appellee made no further attempt to work on the basement, but in June or July, while he and his attorney and the representative of the surety company and the attorney of appellant were in appellant’s office in an effort to adjust their differences, he offered, upon the suggestion of his attorney, to again attempt to repair the work, which appellant refused to permit him to do. Appellee also testified, as one familiar with such work, that a reasonable time in which to repair appellant’s basement was "about a year.” Such are the essential and material facts deducible from appellee’s testimony, and tile verdict of the jury imports no more' than that. We have not stated the evidence adduced by appellant, which in many respects is in flat contradiction of that of ap-pellee, for the reason that we are, of course, to observe the findings of the jury in that respect.

We have reached the conclusion, drawn from the facts admitted by appellee to be those upon which his rights rest, that he did have such reasonable time in which to complete the repairs to the basement as was contemplated by his contract. From the time he commenced work in the basement until he was denied admission thereto was 10 months. It is obvious, in such connection, that it was never contemplated by the parties that so much time would be required to complete the work. The contract itself contemplates that but ¡a brief period would be required in which to complete the repairs, since it provides that §200 should be paid July 19th, 5 days after appellee commenced work, $300 July 26th, 12 days after appellee commenced work, and $150 when the work was completed, which all the parties thought was August 2d, or 7 days after the second payment, which -several payments constituted $050 of the total contract price of $S50. The balance of $200 to be withheld 90 days after completion, during which time presumably the parties believed all defects would develop. Such was evidently appellee’s theory, for after having worked on the basement from July 14, 1913, to August 2, 1913, a period of 19, days, he claimed the work was finished and demanded and received the $150 which was to be paid on such completion. After that period, more than 9 months had passed, and the basement was still leaking. Yet from the time he had finished his work until he was denied admission in the basement he worked in the basement at intervals, a total of only 41 days, the most of the time being in April and May, 1914, nearly 8 months after the period when the bulk of the work had been done, and during all of which time it was evident the work was incomplete and during which time 'he could have been at work completing it. It is true that appellee, as counsel urged, spent the sum of $258.10 during said time; hut, since he was obligated to spend whatever amount was necessary to make the basement absolutely dry, we are constrained to believe that fact is of no assistance in determining what was a reasonable time in which to finish the work. It is also true that appellee testified that he could only determine by the lapse of time whether his work was finished, due to the fact that new leaks might develop. We believe such testimony to be without probative or controlling force, since it indicates inability to cure the defect, rather than a fact or condition contemplated by the parties. To so hold would be to allow a reasonable time in which to complete a given undertaking' and to extend the time when it developed subsequently that the work was incomplete, with the result that reasonable time would in all cases depend upon the willingness of the person bound to again undertake that in which he had originally failed. It is to be remembered that leaks were continually developing during the period of 10 months allowed appellee, the first one being about 3 weeks after he claimed to have finished it, and then again in September, October, November, December, January, April, and May — at least appellee was engaged ⅛ repairing them at that time — and to say that he was entitled to still further time in which to finish the work is to obviously extend the time so as to make it unreasonable. Each occasion of appellee’s re-entry upon the work was notice that it was unfinished, and we think clearly that on each such occasion it was his duty to expeditiously and finally complete the work. It is true, also, that appellee gave it as his opinion, based upon his familiarity with such work and the appellant’s basement, that a reasonable time in which to finish the work “was about a year.” It may first be said that he had “about a year” when he was allowed 10 months. Further, the general opinion of appellee that it would require about a year, taken in connection with his testimony that the greater portion of "the work was in fact accomplished in the first nineteen days of his labor, indicates conclusively that the’time allowed was reasonable.

Holding the views we do with reference to the law arising upon the admitted facts, it becomes our duty to reverse the judgment of the trial court and here render judgment for appellant.

Reversed and rendered.
      <&wkey;>ITor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAYIS, J.

license: Public Domain

text:
    SANTA FÉ TOWN-SITE CO. et al. v. PARKER et al.
    (No. 204.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 4, 1917.
    Rehearing Denied May 2, 1917.)
    1. Dedication @=^44 — Evidence — Sufficiency.
    In an action to restrain county officers from expending money on a road alleged not to be a public highway, evidence held sufficient to show dedication of land for a public road making expenditure lawful.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. §§ 85-87.]
    2. Dedication <⅜^16(1) — Highway — Estop-pel oe Owner.
    To constitute dedication of land for a highway so as to estop owner, there need be no formal grant or continued public use long enough to raise presumption of a grant; any act or declaration by owner showing a present, fixed purpose to dedicate, coupled with use by public in conformity with purpose of owner, being sufficient.
    [Ed. Note. — For .other cases, see Dedication, Cent. Dig. §§ 15, 17, 19.]

      Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    Action by the Santa Fé Town-Site” Company and others against W. S. Parker and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed. ■
    Oliver J. Todd and W. G. Reeves, both of Beaumont, for appellants. V. A. Collins, of Beaumont, for appellees.
   DAYIS, J.

This is an action brought by aijpellants by their petition filed November 24, 1916, against appellees, wh'o are officers of Hardin county, to enjoin the expenditure of county funds upon that portion of a road in Hardin county lying between Silsbee and Woodrow. The road runs from the depot in Silsbee through Woodrow, about a mile distant, to Village Creek, about three miles, where it divides into two roads, one leading to Beaumont and the other to Kountze. The injunction is sought upon the ground that the road in question in not a public highway, and the expenditure of county funds thereon by the officers would be unlawful. The defense was that the road was of such character as to justify the proper officers of the county in the expenditure of county funds thereon. There was a temporary restraining order granted by the district judge of Hardin county in chambers on November 23, 1916, and the cause was set for hearing at a subsequent day, and came on later to be heard by the court in chambers on December 13, 1916, when the parties appeared and a hearing was had, and judgment rendered denying the injunction, and providing that the restraining order be continued in force pending an appeal. The appeal was properly perfected.

It appears from the record that prior to 1906 a road ran across the property of appellant Santa Fé Town-Site Company in approximately the place the road is now located. On September 26, 1916, in cause No. 1473, styled “Santa Fé Town-Site Company v. Jos. Busby et al.,” in the district court of Hardin county, judgment was rendered- by agreement, reciting that' all parties, plaintiff and defendants, appeared in open court, and announced that they had agreed upon a judgment to be entered, and in accordance with such agreement the court entered judgment in part in this language:

“The injunction heretofore issued’ in this cause against all of the defendants is hereby dissolved, set aside, and held for naught. There shall be opened for and dedicated to the public use as an open public highway of the first class, with all the easements, rights, and uses incidental or pertaining to such road, a road 60 feet in width, beginning at the east end of Booker street, on the east line of the South Silsbee town-site and extending thence in a direct line as nearly as practicable, without moving houses or removing other immovable obstacles, to the crossing of the now existing public road, which crosses and at a point where it crosses the-main line of the Santa Fé Railroad, immediately west of the depot at the station of Silsbee. Said road and highway to be by the plaintiff open, clear of obstacles for the free and convenient passage of vehicles and pedestrians, and all necessary bridges or crossings to be built over any intervening water course, ditches, creeks, or other natural but not impassable, obstructions, all of which is to be done at the expense of the plaintiff, and to be done immediately, and the public generally, and especially the defendants in this suit and the residents in the South Silsbee town site and all abutting owners of property along said road, are hereby invested with the right of way, easements and uses usu’ally incident to a public highway of the first class.”

Subsequent to the rendition of the judgment in the Busby case, and on April 28, 1908, in cause No. 1611, styled “W. J. Nor-vell v. Santa Fé Town-Site Company,” the district court of Hardin county rendered judgment upon a jury trial in part as follows:

“The Santa Fé Town-Site Company is hereby ordered to open up and dedicate to the public use as an open and public highway of the first class with all easements, rights, and uses incidental or appertaining to such road, a road 60 feet in width” (describing its location, etc., as in the Busby judgment).

On the rendition of the Norvell judgment the appellant Santa Fé Town-Site Company laid out the road in controversy herein as now located, and, when so laid out, the commissioners’ court of Hardin county had the same graded and appointed overseers on it, and appointed hands to work it. Continuously after the road was laid out in accordance with the order of the court in the Norvell case it was under the supervision and control of the proper officers of Hardin county, and treated as a properly dedicated road of the first class. The county spent some $5,000 in grading the road in 1910, and put in a steel bridge with concrete foundation at a cost of about $1,000. This was done with the knowledge and consent of the appellant town-site company, and the road was continuously used as a first-class road by the public generally.

Some time prior to the institution of this suit a petition was presented to the commissioners’ court of Hardin county by the appellant Seibert, who was cashier and collector of appellant town-site company, asking that the road in controversy be closed. This petition was signed by a number of persons, including appellant Seibert and James L. Kirby, who was in charge of the appellant town-site company’s property in Silsbee. At the time of the institution of this suit the officers of Hardin county were further improving the road by expending funds on the road by grading, draining, and hard-surfacing same with shell.

Appellant contends that the judgment in the Busby suit is void; that it is but an agreement of counsel attempting to bind their client to make a future dedication of the road, and not a dedication thereof; that, neither the public, nor its officers being parties to the judgment, no public right could be affected thereby; that all jurisdiction to lay out a public road is vested in the commissioners’ court; tliat the act of the attorneys of the Santa Fé Town-Site Company agreeing in a void judgment that their client would lay out and dedicate a public road was void for the want of authority in such attorneys; and that, even though there was a valid dedication of the road, same could have been and was retracted by the donor before actual acceptance of the property by the public, and such dedication was withdrawn, as shown by the refusal of the town-site company to make such dedication of the property until forced to do so by the judgment in the Norvell case.

The view we take of the case -renders a discussion at length of appellants’ contentions unnecessary. We believe the dedication of the road is well established by the facts recited. To constitute a dedication, so as to estop the owner, it is not necessary there should be a formal grant by deed, nor is it necessary, that there should be continued use by the public long enough to raise the presumption of a grant. Any act or declaration on the part of the owner showing a present, fixed purpose to dedicate, coupled' with the use by the public in conformity with the purpose of the owner, is sufficient. Wolf v. Brass, 72 Tex. 135, 12 S. W. 159; Menczer v. Poage, 55 Tex. Civ. App. 415, 118 S. W. 865; Martinez v. City of Dallas, 102 Tex. 54, 109 S. W. 2S9, 113 S. W. 1167; Bellar v. City of Beaumont, 55 S. W. 411; Smith v. Allen, 40 S. W. 205; Field v. Mark, 125 Mo. 502, 28 S. W. 1004; Moose v. Carson, 104 N. C. 431, 10 S. E. 689, 7 B. R. A. 548, 17 Am. St. Rep. 681; Conrad v. Land Company, 126 N. C. 776, 36 S. E. 282; Hughes v. Clark, 134 N. C. 457, 46 S. E. 956, 47 S. E. 462; Pullman v. City of Houston, 59 Tex. Civ. App. 48, 125 S. W. 69; City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924.

We do not consider the judgment in the Busby suit as showing an unauthorized agreement of settlement made by counsel for the Santa Fé Town-Site Company. On the contrary, the judgment recites, “All parties, plaintiff and defendants, appeared in open court,” and “The parties plaintiff and defendant thereupon announced to the court that they had agreed upon the following judgment to be entered in this cause.” This language of the judgment is not susceptible of the construction that the attorneys representing the Town-Site Company made the settlement or entered into any agreement whatever. No pleadings in either the Busby suit or the Norvell suit were before the court in this case, and no proof as to the issues of the parties to those suits was made, except as reflected by the judgments themselves. That being true, the statement, that the judgment in the Busby suit is based on an agreement of counsel, without their authority, would be to collaterally impeach that judgment, which is unauthorized. We will presume the court acted within its jurisdiction in rendering the judgment rendered by it in the Busby suit. Nor do we think the Busby judgment void because the court invaded the exclusive jurisdiction of the commissioners’ court in lay-: ing out a public road. We do not read that judgment as attempting to lay out a public road. Its effect is to give judicial sanction to a settlement between the parties, of a controversy between them, of which it had unquestioned jurisdiction, and, having acquired jurisdiction of the parties and the subject-matter, such jurisdiction was retained for all purposes.

The judgment in the Busby Case does plainly show an agreement and obligation on the part of appellant Santa Fé Town-Site Company to lay out and dedicate the road as a first-class road. It was laid out by the town-site company in compliance with that agreement, whether in obedience to the judgment in the Norvell case or not. After being surveyed and located by the town-site company, Hardin county, through its proper officers, took charge of same, drained, hard-surfaced, and improved same as a duly dedicated public road of the first class, and it was continuously used as such by the public, and all within the knowledge of and without complaint from appellants. This, we think, amounted to a dedication of the property, and the judgment of the trial court denying the injunction was right, and should be affirmed; and it is so ordered.

Affirmed.
      <§=wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    HOUSTON & T. C. R. CO. v. DERDEN.
    (No. 7692.)
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 17, 1917.)
    1. Appeal and Error @=765 — Briefs — Notice of Filing.
    In the Court of Civil Appeals, the appellee is not required to notify appellant that his brief has been filed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig*. § 3100.]
    2. Appeal and Error @=767(1) — Briefs — Striking Out.
    Appellee’s brief in the Court of Civil Appeals will not be stricken for failure to notify appellant of its filing, especially where appellant 'does not claim that the delay prejudiced it, nor request a postponement for the purpose of submitting a reply brief.
    3. Justices of the Peace @=58(3) — Jurisdiction — Amount in Controversy.
    Where the citation as contained in the record indicates that plaintiff’s demand in a justice court action was less than $200, the jurisdiction of the justice court is established.
    [Ed. Note. — For other cases, see Justices of the Peace, Cent. Dig. § 211.]
    4. Carriers @=228(5) — Injury to Live Stock — Computing Damages.
    In an action against a railroad for damage to live stock shipments, the exact amount of damages need not be capable of definite computation in order to support a verdict for plaintiff.
    [Ed. Note — For other cases, see Carriers, Cent. Dig. § 960-.]

      Appeal from Navarro County Court; R. R. Owen, Judge.
    Action by B. J. Derden against tbe Houston & Texas Central Railroad Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Baker, B'otts, Parker & Garwood, of Houston, and R. S. Neblett and Gordon Damon, both of Corsicana, for appellant. Richard Mays, of Corsicana, for appellee.
   RAINEY, C. J.

Appellee sued appellant in the justice court to recover damages to a shipment of cattle from Corsicana to Et. Worth, Tex. A general denial was pleaded by appellant. A trial resulted in favor of appellee, and appellant appealed to th'e county court, where a similar result was obtained, and the case is here for review.

The appellant moves to strike out the brief of appellee, because “said brief was not filed within the time prescribed by law, and appellant has had no notice of the filing of the same until the date of submission.” Appellee’s brief was filed in this court on October 14, 1916, and this cause was submitted February 10, 1917. Notice to appellant of the filing in this court of appellee’s brief is not required. Appellant does not claim that it has been in any way injured by the failure of notice to it of the filing of said brief. No postponement of the submission of the case was asked for for appellee to reply, etc., therefore the motion to strike out brief will be overruled.

The appellant raises in written argument the question of jurisdiction of this court to pass upon this case, on the ground that the amount sued for in the justice court was above $200. It is urged that the damages to the cattle, according to the citation in the justice court, which was appellant’s pleading, shows plaintiff’s demand to be above $200. Upon examination of the record, we find from the citation, which controls, that it stated the damage did not amount to more than about $170, of which the justice court had jurisdiction. If the shrinkage was 30 pounds per hundredweight, the justice court did not have jurisdiction, and this court would have no jurisdiction, but would have jurisdiction if the loss was 15 pounds per hundredweight, as alleged in the citation. Taking the record as our guide, it shows jurisdiction, and the contention of appellant is overruled.

The assignment presented is:

“The judgment of the court is not supported by the evidence, in that no means of computation could- the exact amount found be arrived at.”

In this character of case the exact amount of damage can hardly be' definitely computed, and the judgment of the' jury after hearing .the evidence is the mode selected by law for determining the amount, and the jury having found a verdict for $140.58, which we are of the opinion is supported by the evidence, the judgment is therefore affirmed.

Affirmed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LANE, J.

text:
    MORRIS et al. v. GALVESTON ELECTRIC CO.
    (No. 7350.)
    (Court of Civil Appeals of Texas. Galveston.
    March 17, 1917.)
    1. Appeal and Error @=>736 — Assignment op Error — Failure to Comply with Rules. •
    Where an assignment of error complaining of order overruling motion for new trial contained five separate and distinct assignments set forth in the motion and five other such assignments not found therein, and was multifarious and too general and not in compliance with Rules 24, 25, 26, 29 (142 S. W. xii, xiii), prescribing requirements for assignments of error and briefs, it will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 302S, 3029.]
    2. Appeal and Error <§^1004(1) — Review-Verdict — Amount op Recovery.
    Where there was sufficient evidence to support a verdict fixing the amount of damage for personal injuries, it will not be disturbed as inadequate.
    LEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3944, 3946.]
    ■ Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Suit by Mrs. Elsie M. Morris and husband against the Galveston Electric Company. Judgment for plaintiffs for part only of the demand, and they appeal.
    Affirmed.
    O. S. York, of Galveston, for appellants. Terry Cavin & Mills, of Galveston, for appel-lee.
   LANE, J.

This was a suit brought by appellants, Elsie M. Morris and her husband, James Morris, to recover damages for personal injuries alleged to have been received by Mrs. Monis by reason of the alleged negligence of appellee’s employes, who were operating a street car in the city of Galveston, upon which Mrs. Morris was a passenger. Appellants’ claim was that, the street car having stopped at the place where Mrs. Morris desired to leave it, while she was in the act of leaving the car, by way of the platform, the car was, without warning, unexpectedly and suddenly put in forward motion, and she was thereby thrown from the car to the street, and that the conductor did not attempt to assist her to alight, and she thus received the injuries she complains of, and for which damages are sought in this suit. Appellee replied by general demurrer and general denial; that, if Mrs. Morris was injured, it was solely the result of an unavoidable accident without negligence on the part of appellee’s employes; and set up that, if Mrs. Morris was injured, she contributed to her injuries by failure to use that degree of care and caution for her own safety which an ordinarily prudent person would have used, in that, at the time of the accident, she was wearing a pair of shoes with extremely high heels, too high for her own safety, and that in attempting to leave the car one of the heels of her shoe was caught on the step or platform of the car, without fault or negligence of the appellee, and she was thereby caused to be thrown or fall from the car to the street, and that at the time she fell from the car it was standing perfectly still and was not moved in any way while she was attempting-to alight therefrom. The cause was tried before a jury and resulted in a verdict and judgment in favor of appellants against appellee for $200.

Appellants’ first and only assignment of error in his brief is, in substance, as follows:

_ “The court erred in overruling plaintiffs’ motion for a new trial, and for the convenience of the court appellants here set out said motion:
“Now comes the plaintiffs in the above numbered and entitled cause and moves this honorable court to set aside the verdict and judgment rendered herein on the 14th day of March, 1916, and grant them a new trial in this cause for the following good and sufficient reasons: First. The verdict of the jury is contrary to the law and evidence. Second. Because the amount recovered in this case is too small and inadequate. Third. If the jury believed from the law and evidence that the plaintiff was entitled to recover at all, then they should have given her in their verdict a substantial sum. Fourth. That the jury were lead to discredit the testimony of the plaintiff Elsie Morris because of the evidence of Dr. Flynn that she was suffering with venereal disease. Fifth. Because plaintiffs under the facts and the law of the case were, either entitled to a substantial verdict commensurate with the injuries received, or she was not entitled to anything. Wherefore plaintiffs pray this honorable court that they be granted a new trial in this ease. O. S. York, Attorney for Plaintiffs.
“I. Because the verdict of the jury is contrary to the law, because under the charge of the court they could not have found for the plaintiff unless they found negligence on the part of defendant.
“II. Because, when they found a verdict in favor of the plaintiff, under the charge of the court, they found negligence on the part of defendant, and therefore should have rendered a substantial verdict in favor of defendant.
“III. Because, if the jury believe from the law and the evidence that the plaintiff was entitled to recover at all, then they should have given her in their verdict a substantial sum.
“IV. Because the jury were led to discredit the testimony of the plaintiff Mrs. Elsie Morris because of the evidence of Dr. Flynn that she was suffering with venereal disease.
“V. Because plaintiff Mrs. Elsie Morris, under the facts and the law of the case, was either entitled to a substantial verdict commensurate with injuries received, or she was not entitled to anything.
“Proposition. New trial may be granted as well when damages are manifestly too small as when they are too large. Article 2022, Revised Statutes.”

The assignment is made up of a complaint of the action of the trial court in overruling appellants’ motion for a new trial, containing five separate and distinct assignments, and of five other separate and distinct assignments not found- in the motion for new trial. Such assignment is multifarious, and too general; it is not made in compliance with Rules 24, 25, 26 and 29 prescribed by the Supreme Court (142 S. W. pages xii and xiii); Bumpass v. Morrison, 70 Tex. 756, 8 S. W. 596; Ry. Co. v. Goodrich, 149 S. W. 1176; Ry. Co. v. Matlock, 141 S. W. 1067; Pritchard Rice Mill Co. v. Jones, 140 S. W. 817; I. & G. N. Ry. Co. v. Miller, 124 S. W. 109; Cannon v. Cannon, 66 Tex. 685, 3 S. W. 36. In view of the fact that said assignment is multifarious, too general, and indefinite, we refuse to consider the same.

However, by referring to appellants’ brief we find that the only contention made by appellants for a reversal of the judgment of the trial court is that the verdict of the jury finding for appellant the sum of $200 was not adequate compensation for the injuries suffered by appellant, shown by the evidence. We have carefully examined the evidence, and we conclude that the jury had ample evidence before them to support their finding. We are not at liberty to substitute our finding on the facts for that of the trial jury when there is sufficient evidence to support their verdict.

The judgment of the trial court is affirmed.

Affirmed.
      <g^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    ST. PAUL FIRE & MARINE INS. CO. v. McQUARY.
    (No. 5764.)
    (Court of Civil Appeals of Texas.
    April 18, 1917.)
    1. Insurance <&=645(5) — Action—Pleadinu —Proof.
    In view of Rev. St. 1911, art. 4621, providing that all property of a wife owned before marriage shall be the separate property of the wife but during the marriage the husband shall have the sole management of it, in an action on a policy of fire insurance, proof that the property insured belonged to the wife of the plaintiff did not sustain' his allegations that he was the owner of the property at the time the contract of insurance was made and at the time it was destroyed by fire.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1554, 1642-1644.]
    2. Insurance <®=o115(7) — Insurable Interest-Separate Property of Wife.
    As a husband has no insurable interest in the separate property of his wife, a contract of insurance issued to a husband on property in fact owned by his wife is void and unenforceable.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 153.]
    3. Insurance <®=^66S(1) — Action on Policy —Instruction of Verdict.
    In an action on a fire policy issued to a husband in which it appeared that the husband had no insurable interest in the property insured, as it was the separate property of his wife, the trial court should have instructed a verdict for the defendant.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1733, 1752.]

      4. Appeal and Error <⅞=»1175(3) — Disposition oe Cost.
    In an action on a fire policy where the trial court should have instructed a verdict for the defendant on the ground that the plaintiff did not show an insurable intei’est in the property insured and there was no probability that he could procure testimony Showing such insurable interest, as the property belonged to his wife, it is the duty of the appellate court to render the judgment for the defendant which should have been rendered below.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4577.]
    Error from Falls County Court; F. S. Heffner, Judge.
    Action by Arthur McQuary against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.
    Reversed and rendered.
    Elliott Cage, of Houston, for plaintiff in error. N. J. Llewellyn, of Marlin, for defendant in error.
   KEY, C. J.

Arthur McQuary brought this suit against the insurance company and sought to recover $800, alleged to be due under an insurance policy on a barn which was destroyed by fire. Among other things, he alleged in his petition that he was 1¿he owner of the bam at the time the contract of insurance was made, and at the time it was destroyed by fire. The answer of the insurance company included a general denial, which put the allegations referred to in issue.

On direct examination, the plaintiff, Arthur McQuary, spoke of the property as being his; but upon cross-examination he said:

“I live in Waco. I am married. I was living at Waco at the time of the fire. The property that burned was about 1½ miles from Chilton. There is about 100 acres. The property belongs to my wife. She had it when we were married. My wife was a widow when we were married.”

There was no other testimony bearing upon the question of ownership, and therefore we sustain the second assignment of error, which complains of the action of the trial court in refusing to instruct a verdict in favor of the defendant in the court below.

The proof did not sustain the plaintiff’s allegation of ownership, but, on the other hand, showed that the property did not belong to him, but was the separate property of his wife. Revised Statutes, art. 4621. It is well settled that a husband has no insurable interest in the separate property of his wife, and therefore the contract of insurance as disclosed by the plaintiff’s own testimony was void and unenforceable. German Ins. Co. v. Hunter, 32 S. W. 344; German-Amr. Ins. Co. v. Paul, 2 Ind. T. 625, 53 S. W. 442; Planters’ Mut. Ins. Co. v. Loyd, 71 Ark. 292, 75 S. W. 725.

Holding as we do that the court below should have instructed a verdict for the, insurance company, and as there is no probability that the plaintiff could procure testimony showing that he had an insurable interest in the property, it becomes our duty to render the judgment which the court below should have rendered; and therefore the judgment of that court is reversed, and judgment here rendered for the plaintiff in error, the insurance company.

Reversed and rendered.
      SnroFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    CUERO PACKING CO. v. ALAMO MFG. CO.
    (No. 5728.)
    (Court of Civil Appeals of Texas. Austin.
    April 11, 1917.)
    1. Corporations <§^>382 —Charters—Con - struotion.
    A packing company, chartered for the construction and maintenance of’establishments for slaughtering, refrigerating, canning, curing, and packing meat, entered into a contract with plaintiff to maintain a refrigerating plant for turkeys to be bought by plaintiff. The packing company breached its contract, and defended the action for damages on the ground of ultra vires. Iield that, while corporate powers must be strictly construed in a suit by the state or by a stockholder against the corporation, or where public interest is involved, yet, where a corporation seeks by the claim of ultra vires to avoid a contract, the strict construction rule does not apply, and hence the charter of the corporation must, though the word “and,” used in connection with the clause providing for the construction and maintenance of establishments, etc., be treated as a conjunctive, the corporation must be deemed to have sufficient power to enter into the contract.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1514, 1515, 1517, 1536.]
    2. Corporations <@=^>399(4) — Contracts—Authority op Agent.
    The general agent being virtually the corporation itself, a contract within the charter powers of the corporation cannot be avoided by the corporation on the ground that the general agent by whom it was made was without authority ; it not appealing that the directors had undertaken to restrict his powers, or that any restriction was known to the other contracting party.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1588, 1606.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by the Alamo Manufacturing Company against the Cuero Racking company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Wilkinson & MeGaugh, of Brownwood, for appellant. R. E. Lee and McCartney & McGee, all of Brownwood, for appellee.
   Findings of Fact.

JENKINS, J.

The Cuero Packing Company is a corporation, with its principal office at Cuero, in De Witt county, Tex., chartered for the purpose of “the construction and maintenance of establishments for slaughtering, refrigerating, canning, curing, and packing meat.” On May 22, 1914, E. C. Hesse was, and for four years had been, the secretary, treasurer, and general manager of the corporation. Its president was A. D. Edson. Its directors were A. D. Ed-son and Wm. D. Edson, of Philadelphia, Pa., and E. C. Hesse, Walter Reiffert, and Newton M. Crain, of Cuero, Tex. On the date mentioned the following contract was entered into between the appellant and appellee:

“Brownwood, Texas, May 22, 1914.
“Know all men by these presents, that the Alamo Manufacturing Company, a corporation of the state of Texas, party of the first part, and the Cuero Packing Company, of Cuero, Texas, party of the second part, do on this day enter into an agreement and contract, as follows: The Alamo Manufacturing Company agrees to furnish cold air in their two rooms that are now being .used by them (the Alamo Manufacturing Company) for the purpose of cooling Sind holding turkeys, at a minimum charge, for the months of November and December following 'the date of this instrument, of five hundred dollars ($500.-00), to be paid as follows: Two hundred and fifty dollars on the 31st day of November, 1914, and two hundred and fifty dollars on the 31st day of December, 1914. It is further agreed that, in the event that the Cuero Packing Company handles more than one hundred thousand pounds of turkeys through these rooms, it is to pay the Alamo Manufacturing Company an additional half cent per pound for each pound over'the 100 M pounds.
“It is further agreed that the Cuero Packing Company make a deposit of one hundred dollars in the bank of Brooke, Smith & Co-, to further secure the Alamo Manufacturing Company and to make this instrument binding.
“Alamo Mfg. Co., per Will Lathem.
“Cuero Packing Co., by E. C. Hesse.”

Appellant breached this contract, and ap-pellee brought suit for damages by reason thereof, and judgment was awarded in its favor.

Opinion.

Appellant invokes the doctrine of ultra Vj-*es, and in support of its contention asserts that its charter did not authorize it to maintain an establishment for refrigerating turkeys, unless such establishment had been constructed by it. The language of its charter is, “the construction and maintenance of establishments," etc. It is true, as claimed by appellant, that as a general rule “and” does not mean “or.” 2 Am. & Eng. Enc. of L. 333 to 380; Robinson v. Southern Pac. Co., 105 Cal. 526, 38 Pac. 94, 28 L. R. A. 773. But there are many exceptions to this rule, as appears from the notes to Enc. of Law above referred to. See also Amer. Security Co. v. Koen, 49 Tex. Civ. App. 98, 107 S. W. 939; Dam Co. v. Excelsior Co., 105 Me. 249, 74 Atl. 115; Kansas City v. Grush, 151 Mo. 128, 52 S. W. 286; Machinery Co. v. Johnson, 81 S. C. 10, 61 S. E. 1027.

It is not necessary, however, to hold that “and” means “or” in the instant case; but if the meaning insisted upon by appellants be given, that is, that “and” means “adding to,” still we think the charter authorized appellant -to maintain a refrigerating establishment not theretofore erected by it. That is to say, we think the language of the charter means that it may construct, and it may also maintain, such establishment, without both constructing and maintaining the same establishment. That “and” was used in this sense in the charter is evident from the fact that the company was chartered for “slaughtering, refrigerating, canning,, curing, and packing meat,” that is to say, for doing each of these things, and not that before being authorized to pack meat it must first refrigerate, can, and cure it.

Appellant asserts the proposition that corporate powers must be strictly construed. This depends upon who are the parties to a suit, and the purpose for which it is brought. If the suit is by the state, or by or against a municipal corporation involving legislative powers, or by a stockholder against a corporation, or where the public interest is involved, and the corporation is claiming exclusive privileges, or is seeking to avoid the discharge of its duty, the charter powers of a corporation are strictly construed. Taylor Feed Pen Co. v. Bank, 181 S. W. 537; Victoria Co. v. Bridge Co., 68 Tex. 62, 4 S. W. 140; Wharf Co. y. Railway Co., 81 Tex. 494, 17 S. W. 57; State v. Country Club,'173 S. W. 581; Insurance Co. v. Commonwealth (Ky.) 133 S. W. 793; Colorado Springs Co. v. Publishing Co., 97 Fed. 843, 38 C. C. 'A. 433. However, “when the corporation * * ⅞ seeks to defeat the contract because it is ultra vires, the courts are reluctant to grant relief, it being an attempt to evade a contract.” Bank v. Oil Co., 24 Tex. Civ. App. 645, 60 S. W. 829.

“The question as to whether a contract is ultra vires or not may arise in a controversy between the state and a corporation, or between the corporation and the party with whom it has assumed to contract;, and it may well'be that different rules of construction apply to. the two cases. All grants, even grants of corporate franchises, are construed strongly in favor of the government, and against the grantee. So, when the state challenges the action of one of its corporate creations, it may insist on clear warrant for such action. It may say: ‘Point to the letter of your authority. I abide by my contract, and protect you in the rights and franchises I have given. Abide by your contract, and assume to do no act in disregard of the duties I have imposed, or beyond the authority I have conferred.’ The rule of strict construction exists in such a case. But a milder rule applies when a corporation - seeks to repudiate a contract into which it has formally entered. It is not seemly for a corporation, any more than for an individual, to make a contract and then break it; to abide by it so long as it is advantageous, and to repudiate it when it becomes onerous.” Railway Co. v. Railway Co. (C. O.) 47 Fed. 22.

See, also, Machinery Co. v. Johnson, 81 S. C. 10, 61 S. E. 1028; Brewing Co. v. Boddie, 181 Ill. 662, 55 N. E. 49; Malone v. Gas Co., 182 Pa. 309, 37 Atl. 932; Gas Co. v. Dairy Co., 60 Ohio St. .96, 53 N. E. 711; Sales Co. v. Lumber Go., 193 Ala. 166, 69 South. 527; Tod v. Land Co. (C. C.) 57 Fed. 53. . .

In the case last above cited, the court quotes from Morawetz on Private Corporations, § 362, as follows:

“ ‘It is therefore * * * impossible to decide abstractly that acts of a particular description are within or without the chartered powers oí a corporation. The right of a corporation to perform an act depends, in every case, upon all the surrounding circumstances.’ ”

In the instant case it is evident that the company was chartered, not only for “slaughtering, refrigerating, canning, curing, and packing meat,” but also to sell the same in the market. It appears that their principal business consisted in buying, refrigerating, and selling turkeys in the Eastern markets, and that, while its principal office was at Cuero, it carried on this business elsewhere. Mr. A. D. Edson, president of the company, testified:-

“In some instances, where the Cuero Packing Company buys turkeys outside of De Witt county, Tex., they are shipped to Cuero, Texas, for the purpose of slaughtering and cold storage. It is often the case that the Cuero Packing Company, of Cuero, Tex., buys large quantities of turkeys some distance from De Witt county, as much as 100 miles away, and has the turkeys so bought slaughtered and put into cold storage near the place of purchase, and from there ships them to the Northern and Eastern markets, without said turkeys being shipped to Cu-ero, Tex.”

This is what the Packing Company contemplated doing when it made its contract with appellee. On May 25, 1914, A. C. Hesse, general manager of the company, at the request of Mr. A. D. Edson, president of the company, wrote appellee as follows:

, “We expect to concentrate 20 cars or more, if the turkeys are in that part of the state.”

Appellant insists that the contract sued upon is not its contract, for the reason that Hesse had no authority to make the same. He so testified. But we think this is rather a conclusion of the witness than a statement of fact. The contract was one which the company had authority to make, and Mr. Hesse, being its general manager, had the apparent authority to act in behalf of the company, and it does not appear from the record that the directors had undertaken to restrict him in this matter, and, if they had done so, it appears that appellee had no notice of such action. “A general manager * * >:=' js one wi10 ilas general direction and control of the affairs of the corporation.” Booker Jones Oil Co. v. Refining Co., 132 S. W. 816. “ ‘General manager’ is synonymous with general agent. A general agent is virtually the corporation itself.” Railway Co. v. Reisner, 18 Kan. 460. The testimony in this case sustains the finding of the trial court that the contract was within the corporate powers of appellant, and that E. C. Heese had authority to make such contract.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
      tg^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLX, C. J.

text:
    CHAPIN v. FORD.
    (No. 5836.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 4, 1917.
    Rehearing Denied May 2, 1917.)
    1. Covenants @=342(1) — Against Incum-brances — Provision oe Deed.
    Under Rev. St. 1911, art. 1112, providing that from the use of the word “grant” or “convey” in a conveyance by which a fee simple is to be passed a covenant that the estate is free from incumbrances is implied, unless restrained by express terms in the conveyance, provision in a deed of land on which was a mortgage of the grantors to an insurance company for $15,-000, payable in three years, that the grantors shall have the right to relieve the premises from existing incumbrances at any time before the last purchase-money note given by the grantees matures, cannot be construed to impair the force of the special warranty immediately following that the grantors will hold harmless the grantees against enforcement of any liens on the lands at the time of their purchase, the grantees having given ten purchase-money notes, nine for $1,500 each, due one each year after date, for nine years, and one for $8,715, due ten years after date, and the grantor being insolvent.
    [Ed. Note. — For other cases, see Covenants, Cent. Dig. § 43.]
    2. Vendor and Purchaser @=3286 — Stay of Execution.
    Execution on judgment on notes for purchase price of land should be stayed in a sufficient amount to protect the purchaser against lien of incumbrances not yet due, against which the insolvent vendor covenanted.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 808, 809.]
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Action by S. B. Ford against D. B. Chapin and others. From an adverse judgment, the named defendant appeals.
    Affirmed in part, and reversed and rendered in part.
    Lee Wallace and W. G. Garrett, both of Kerrville, and D. B. Chapin, of Laredo, for appellant. Guy S. McFarland, of San Antonio, for appellee.
   FLX, C. J.

This is a suit instituted by appellee against D. Sullivan, D. J. Sullivan, May Sammons, and D. B. Chapin, to recover against them the amount of nine promissory notes for $1,500 each, dated January 16, 1915, due respectively in one to nine years from date, with interest at 7 per cent, per annum, and a note for $S,715 of same date due in ten years after said date, each note providing that past-due interest should bear interest at 10 per cent, per annum, and providing that in case of default of payment of principal 10 per cent, additional on the same should be paid for attorney’s fee, if placed in hands of an attorney for collection, or if collected by suit, and also providing that the failure to pay any one or more of the notes at maturity would cause all of them to become due and payable if the holders thereof should so elect. The notes were alleged to have been executed by Albert Sammons and wife, May Sammons, for part of the purchase money of certain lands, being 7,732.61 acres, in Kerr county and a city block in Kerrv'ille, which had been- conveyed to them by appellee, an express lien having been reserved in the deed, as well as set forth in a deed of trust to secure the payment of the notes. Appellee-also sought a recovery of a balance of $1,564.77, alleged to be due on ten promissory notes for $566 each, secured by a deed of trust on the sama lands. It was alleged’ that appellant purchased the land from May Sammons, the widow of Albert Sammons, deceased, -and had assumed payment of the notes as a part consideration for the conveyance. The two Sullivans and May Sammons disclaimed all interest in the land, the last named alleging that she had sold her equity in the land to appellant for $1,600 and his assumption of the payment of the promissory notes executed by her and her deceased husband.

Appellant pleaded in abatement the pen-dency of a suit instituted by him in the Forty-Fifth district court of Bexar county, which plea was overruled, and then he filed an answer consisting of a general denial, an admission that the notes had been executed as alleged, that they were secured by the liens alleged, and that he had purchased the land and assumed payment of the notes, but claimed the payment of $5,000 to appellee which had been credited on the second lien notes» instead -of on those secured by the first lien. It was further alleged that at the time appel-lee conveyed the land to Sammons it was incumbered by a mortgage to secure a note for $15,000, executed by appellee to the ¿Etna Life Insurance Company. Appellant admitted default in the payment of the first note to become due, and pleaded an offer made by him to pay the full -amount of the notes if appellee would satisfy the mortgage on the land given to’the insurance company, which he refused to do. A cross-action for damages by appellant was dismissed upon exceptions. The cause was. tiled without- a jury, and resulted in,a judgment in favor of appellee for $28,025.

It was proven that the lands were sold, as alleged, by E’ord and wife to Sammons and wife, the ten notes sued on first herein described being given for part of the purchase money for the land, and each note reciting that upon a failure to pay any one note of the series or the interest thereon all the notes should, at the option of the holder, mature. There was provision for past-due interest to bear 10 per cent, interest and for attorney’s fees. A vendor’s lien was expressly reserved in the deed and notes. A deed of trust on the land was also executed by the vendees to secure notes. At the time of sale of the lands to Sammons and wife- appellee owed the .¿Etna Life Insurance Company the sum ■ of $15,000, evidenced by a promissory note and secured by a mortgage on the lands sold to Sammons and wife, and appellee and wife in their deed bound themselves ‡0 protect their vendees from the lien. The note to the insurance company was secured by a deed of trust on the lands in question.

The following clause was placed in the deed:

■ “But it is understood and agreed that we, the said S. B. Ford and Anna B. Ford, our heirs and legal representatives, shall have the right to relieve the foregoing described lands herein conveyed from the incumbrances existing thereon at any time before the last note executed and delivered by the said Sammons, hereinbefore described, matures, it being understood further, however, that we bind ourselves, our heirs and legal representatives, to protect and hold harmless the said Sammons against the enforcement of any of said liens how existing on the said lands, that is to say, the liens existing on the said lands at the time of the purchase of said lands by the said Sammons from us.”.

The clause quoted is somewhat obscure, but was construed by the trial judge to mean that it modified the general warranty, as well as the special one against the liens, to such an extent that appellee could postpone the payment of the $15,000 due the insurance company until the ten-year note for $8,715 became due. The note for the $15,000 will mature on March 1, 1918, and no contract made by and between Sammons and appellee as to when the latter shall pay off the note can .have any effect. It must be presumed that when the note is due the insurance company will demand payment, and if payment is not made will proceed to institute suit to foreclose their lien on the land. If it was the desire to postpone the payment as indicated, a thing was attempted over which neither vendor nor vendee had any control whatever.

Under the general warranty clause in the deed from appellee and wife to Sammons and wife there was the implied covenant that the estate conveyed was free from incum-brances, among the latter being all liens upon the property, unless restrained by express terms contained in such conveyance. Kev. Stats, arts. 1112, 1113. No such restraint can be derived from the words herein quoted from the deed. The words permitting the payment of the $15,000 at any time before. February, 1925, cannot be distorted into an attem'pt to restrain the general warranty. The statute provides that the implied warranties named therein shall arise ’ “unless restrained by express terms contained in such conveyance.” Such restraint cannot be implied, it cannot be read by construction into the deed, but it must appear therein in “express terms.” That there was no intention upon the part of the vendor and vendee to limit, restrict, restrain, or impair the full force of the warranty is evinced by the1 special warranty immediately following the language in question in which it is recited:

“It being understood further, however, that we bind ourselves, our heirs and legal representatives, to protect and hold harmless the said Sammons against the enforcement of any of said liens now existing on the said lands, that is to say, the liens existing on the said lands at the time of the purchase of the said lands by the said Sammons from us.”

The force of that positive and explicit warranty cannot be weakened or impaired by the obscure and uncertain language about when appellee should pay off the lien to the insurance company, a matter over which neither party had any control or any right to contract. The court held that the language used in regard to when the lien should be discharged had the effect of giving Sammons or his assigns the right to refuse payment of the $8,715 note until the $15,000 was paid, or, in other words, that Sammons had contracted for $8,715 worth of security against a $15,000 lien on his land.

That such was not the intention of the parties is indicated by the fact that only three of the notes for $1,500 each were to become payable before the $15,000 note was due to the insurance company, thus leaving notes unpaid at that time in the sum of $17,-715, which would be sufficient protection against the lien. It must be presumed, in the absence of an express contract to the contrary, that this protection was demanded and given, against a man alleged by appellant, and seemingly not controverted, to be wholly insolvent. Without such protection against the lien, appellant would have nothing as security but his debt of $8,715, and a claim against an insolvent party. We do not believe that any such state of affairs was within the contemplation of the parties, and, if it was, it has. been so inaccurately and obscurely expressed as not to be intelligible. In order to destroy or impair the warranty against incumbrances it should be clear and plain, and set forth in express terms.

We need not enter into the question of the power and authority of the appellee to declare all the notes matured. It was done, and appellant has expressed a willingness and desire to pay off the notes if the incum-brance of the lien for $15,000 is removed from his land, and the question of the power to declare all the notes matured is of no consequence. While there was no legal tender of any sum by appellant, still, having pleaded his willingness to discharge all the debt due appellee as soon as the liens on the land are discharged, he will have no cause for complaint when he is given exactly what he seeks.

We are of opinion that there was no error in rendering judgment for the whole amount of the notes, but the court should have stayed execution of the judgment on a sufficient amount of the debt to protect appellant against the lien of the üStna Life Insurance Company. Brown v. Montgomery, 89 Tex. 250, 34 S. W. 448; McLean v. Connerton (Tex. Civ. App.) 78 S. W. 238. In both of the cited cases the right of the vendee to have a stay of execution on his notes for purchase money until incumbrances on the land are removed by the vendor is fully sustained. Justice and equity sustain such decisions.

That part of the judgment in favor of ap-pellee as against appellant for the full amount of the debt and interest and attoi’-neys’ fees and foreclosure of tire liens on the land described in the petition and the judgment as against appellant, D. Sullivan, D. J. Sullivan, and May Sammons is affirmed, but in other respects it is reversed, and judgment is here rendered that an order of sale shall not issue as against such lands, except for the debt, interest, and attorneys’ fees evidenced by three notes for $1,500 each, due on their face, respectively, on January 16, 1916, January 16, 1917, and January 16, 1918, and no steps be taken to force payment of the same until 60 days after said $15,000 note executed to the insurance company, together with all interest thereon accrued, shall have been fully paid and a legally executed and acknowledged release of the liens securing said note has been filed and recorded in the records of the proper county. It is further adjudged that appellee pay all costs of this appeal.

Affirmed in part, and reversed and rendered in part.
      SteoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    UNDERWOOD v. SECURITY LIFE & ANNUITY CO. OF AMERICA.
    (No. 2482.)
    (Supreme Court of Texas.
    May 2, 1917.)
    1. Insurance <@=>310(2) — Life Insurance-Forfeiture.
    Under a policy providing that failure to pay premium will avoid the policy, a failure to pay a premium constitutes a forfeiture without the necessity of formal declaration thereof by the insurer, unless it waived the forfeiture.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 70S, 704.]
    2. Insurance <§=>349(1) — Life Insurance — Forfeiture.
    Under a policy providing for forfeiture on nonpayment of premium when due, the forfeiture occurred ipso facto on the day of due date of the premium, when it was not paid, although by a further provision the insured might have avoided forfeiture by paying the premium, with interest, within 30 day».
    [Ed. Note — For other cases, see Insurance, Cent. Dig. § 913.]
    3. Insurance <@==>372 — Life Insurance — Forfeiture.
    Under such policy, where forfeiture occurred on July 1st, the insured could, on July 11th, Waive the forfeiture.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 941.]
    4. Insurance <@=>605(8) — Life Insurance — Default in • Premium — Waiver—Evidence —Sufficiency.
    Evidence 7teM to show waiver by the insurer of forfeiture clause for nonpayment of premium.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1725.]
    5. Insurance <@=>360(1) — Life Insurance-Forfeiture — Contract—Construction.
    Under so-called “board contract,” providing that if insured caused insurer to receive premiums on $10,000 insurance, he should receive a commission where the insured’s policies wore for $10,000, he could not avoid forfeiture for nonpayment of premium on the ground that his policies entitled him to a sufficient commission to have paid the premium, whore he did not in fact pay such premium.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 916.]
    6. Insurance <@=>349(3) — Life Insurance — Forfeiture of Policy — Nonpayment of Premium — Effect of Note.
    Where insured on due date gave note for premium, failure to pay the note when due was equivalent to failure to pay the premium, and worked a forfeiture.
    [Ed. Note. — !For other oases, see Insurance, Cent. Dig. §§ 897, 898.]
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action- by Mrs. Fannie F. Underwood against the Security Life & Annuity Company of America. Plaintiff brings error to review judgment (150 S. W, 293) for defendant.
    Reversed in part, and affirmed in part.
    Andrews, Ball & Streetman, of Houston, for plaintiff in error. R. W(. Franklin, of Houston, and F. W. Bull, of Chicago, Ill., for defendant in error.
   YANTIS, J.

This suit was brought by the plaintiff in error, Mrs. Fannie F. Underwood, in the district court of Harris county, Tex., to recover judgment upon two life insurance policies, each in the sum of $5,000, which had been issued by the defendant in error for her benefit on the life of her husband, Ceorge B. Underwood. Policy No. 1319 was issued December 31, 1903, with George B. Underwood’s son named as beneficiary. As first issued this policy was in the sum of $10,000. Afterwards the amount was reduced to $5,000, and the beneficiary changed from the sop. to Mrs. Fannie F. Underwood, wife of the insured. Policy No. 6098, foils,000,“ was issued December 30, 1905, payable also to Mrs. Underwood. George B. Underwood, the insured, died September 7, 1907, nearly four years subsequent to the issuance of policy No. 1319, and nearly two years subsequent to the issuance of policy No. 6098. The suit was upon both policies. The case was tried by the court without a jury. The trial resulted favorably to the plaintiff in error on policy No. 1319, and favorably to the defendant in error on policy No. 6098. Appeal was taken by the defendant in error, the Security Dife & Annuity Company of America, to the Court of Civil Appeals for the First District. In said appeal cross-assignments upon the judgment on policy No. 6098 were made by the plaintiff in error. The Court of Civil Appeals reversed and rendered the judgment, which was favorable to the plaintiff in error on policy No. 1319, and affirmed the judgment of the district court, which was favorable to the defendant in error, on policy No. 6098. (Civ. App.) 150 S. W. 283. A writ of error was granted by this court on the petition of the plaintiff in error, Mrs. Fannie F. Underwood, in which she claims that she is entitled to recover upon both policies, and that the Court of Civil Appeals erred in not so holding.

The defendant in error contended that both policies had been forfeited by the insured’s failure to pay the premiums when due. The plaintiff in error, among other defenses pleaded, contended that the forfeiture of both policies for failure to- pay the premiums had been waived. The premiums due on policy No. 1319, issued December 31, 1903, had all been paid except the three quarterly premiums which became due December 31, 1906, March 31, 1907, and June 30, 1907. These premiums were never paid. By agreement a note due 30 days after December 31, 1906, was made by the insured to cover the quarterly premium which matured December 31, 1906. Said note provided for an extension of the policy for 30 days, and that a default in its payment when due would, ipso facto, render the policy null and void. This note was never paid. The policy provided that:

A “failure to pay any premiums when duo will render this policy wholly void, and'forfeit all premiums paid the company, except as herein provided.”

This same provision was in both policies, there was no express provision in either policy for forfeiture on account of default in the payment of any note given for premiums, though it was expressly so provided in each note that was given for premiums on both policies.

Tlie failure to pay these premiums which were past due on policy No. 1319 would constitute a forfeiture of said policy, without the necessity of the insurance company so declaring by word or act, unless it had elected not to enforce the forfeiture, but to waive it. The trial court found that it-had waived the forfeiture of this policy No. 1319. His finding is as follows:

“There was manifestly a waiver of the right of forfeiture upon policy No. 1319, and the repeated demands for subsequent premiums up to the premium for June, and including that, manifested and made clear that there had been no forfeiture, but the policy was "still treated as in force and was desired to be continued, and therefore it was an existing liability for the sum of $5,000 at the time of the death of the insured,' and I find for plaintiff on this policy for $5,000 with 6 per cent, interest from December 19, 1907.”

The Court of Civil Appeals held that there was evidence to support the finding which was made by the trial court, to the effect that the defendant in error had waived the forfeiture of the policy for failure to pay the quarterly premium, which matured December 31,1906, and also had waived the forfeiture for failure to pay the quarterly premium which matured March 31, 1907. But it held that there was no evidence to support the finding of the trial court in holding that there was a waiver of the forfeiture for the failure to pay the premium which matured June 30, 1907.

The evidence which tended to prove a waiver of the forfeiture consists of certain letters which were written to the insured by the insurance company on the subject of the insured’s failure to pay the quarterly premiums. The letters are as follows:

“April 11, 1907. I desire to direct your attention to the premium on your policy No. 1319, which became due on March 31, 1907. We are particularly desirous of having you continue your insurance with this company, and would respectfully ask that you advise us the reason for your not remitting your premium when due. Thanking you for the courtesy of a prompt reply, I remain.”
“May 8, 1907. We have not as yet received payment of the quarterly premium on your policy No. 1319, which became due on March 31, 1907. Heretofore you have made payments very regularly and it is likely an oversight on your part that you have failed to make provision for the last payment. If for any reason you are unable to make payment at this time, we trust you will inform us, as we desire to lend our assistance wherever it will be an accommodation to ouf policy holders.”
“July 11, 1907. The premium of $30.75 on your policy No. 1319 became due June 30, 1907, and remains unpaid. We are particularly desirous of having you continue your insurance with this company, and would respectfully ask that you advise us the reason for your not remitting your premium -when due.”

It was held by the Court of Civil Appeals that the letter of July 11, 1907, could not have amounted to a waiver of the forfeiture for the quarterly premium which became due June 30, 1907, for the reason that the right in the insurance company to forfeit the policy for this default did not accrue until 30 days after the default, and it could not correctly be held that the insurance company—

“by making demand for payment 20 days before any light to forfeiture accrued elected to waive the forfeiture when such right did thereafter accrue.”

This holding by the Court of Civil Appeals cannot be sustained, for the reason that under the contract of insurance the forfeiture of the policy did ipso facto occur upon the failure of the insured to pay the quarterly premium when it matured on June 30, 1907, notwithstanding the fact that the contract allowed the insured 30 days thereafter in which to pay the premium with 5 per cent, interest, and to thereby avoid the forfeiture. The policy in terms provided that a “failure to pay any premium when due will render this policy wholly void.” The plain effect of this provision in the policy is that a-failure to pay a premium due would ipso facto forfeit the policy. There is a provision in the contract which permits the insured, when the policy has been forfeited for failure to pay a premium due to avoid the forfeiture by paying the premium, with 5 per cent, interest, within 30 days after it became due. This provision in the policy is as follows:

“Should default he made in the payment of any premium due upon this policy as herein provided, the company will waive such default and accept payment of said nremium, provided the amount thereof with interest thereon at five per cent, per annum from the date of default be tendered to it within thirty days thereafter.”

We think the defendant in error had the right and privilege, on July 11, 1907, to waive the forfeiture of policy No. 1319, which had occurred for failure to pay the quarterly premium which matured June 30, 1907. The fact that by the provisions of the contract the insured could compel the defendant in error to waive the forfeiture by paying the premium with 5 per cent, interest within 30 days would in no way deprive the defendant in error of the right and privilege to itself voluntarily waive the forfeiture without waiting for the insured to compel a waiver.

There can be no question but that the evidence abundantly supports the finding of the trial court in its holding that the insurance company did waive the forfeiture which occurred upon the failure of the insured to pay the quarterly premium which matured December 31, 1906, and the forfeiture which occurred upon the failure of the insured to pay the quarterly premium which matured March 31, 1907. The letters plainly show an intention Pn the part of the insurance company to waive these forfeitures and to allow the policy to remain in force; and in tliese letters the insurance company plainly recognized the validity of the policy long after the forfeitures occurred, and the 30 days had also expired in each instance in which the insured could comp.el a waiver by paying the premium with 5 per cent, interest.

As to policy No. 1319, the controlling question is, therefore, whether there was evidence of sufficient probative force to support the holding of the trial court that the insurance company had waived the forfeiture which occurred upon the failure of the insured to pay the quarterly premium which matured June 30th. If the insurance company intended to waive this forfeiture, and if there is evidence of sufficient probative force to warrant this conclusion on its part, then the judgment of the trial court upon this issue of fact should not -be disturbed. On the contrary, the judgment of the trial court should be set aside if it is without evidence to support it.

It will be noted that the letter of July 11, 1907, which was written 11 days subsequent to the forfeiture which occurred for the failure of the insured to pay the quarterly premium which matured June 30, 1907, is not a request by the insurance company of the insured to avail himself of his privilege to avoid the forfeiture b.y paying within 30 days, as provided by the contract, the premium which matured June 30th, with 5 per cent, interest thereon. There is no statement in the letter that the forfeiture has occurred, and that it will be enforced unless the premium, with 5 per cent, interest, shall be paid as provided in the contract. There is no insistence that the insured avail himself of his privilege to avoid the forfeiture. There is no statement that the insurance company is standing upon the forfeiture, or will do so. There is the statement that the insurance company is particularly desirous of having the insured to continue his insurance with the company. Now, what was the intention of the insurance company with reference to a waiver of the forfeiture when it wrote this letter? In determining this question we think it was the province of the court, in passing upon the weight of the evidence, to take into consideration the past course of the insurance company with reference to the two previous forfeitures which had occurred, but which it had plainly waived. We think it was the privilege of the court, sitting as a jury, to pass upon the facts to discover the intention of the insurance company, to take into account the fact that the insurance company had waived the two previous forfeitures which had occurred for failure to pay the two preceding matured premiums, and to conclude from this past course of the company, together with the terms of the letter of July 11, 1907, that the intention of the insurance company was to do as it had been doing, that is, to waive the forfeiture which occurred upon the failure of the insured to pay the June 30th premium.

This court), speaking through the late Chief Justice Brown, in the case of Wininger v. Railway, 105 Tex. 56, 143 S. W. 1150, announced the correct rule when testing the probative force of the evidence when it said:

“If, discarding all adverse evidence and giving credit to all evidence favorable to the plaintiff and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff”

—then there was evidence to support their verdict. The same rule was announced by this court in the case of Cartwright v. Canode, 106 Tex. 507, 171 S. W. 696. Now, in this case, credit should be given to all evidence favorable to the plaintiff in error, and every legitimate conclusion should be indulged favorable to her which might have been drawn from the facts proved, and when following this rule we think the previous course by the insurance company in waiving the forfeiture in the two previous instances mentioned was a circumstance which the court, sitting as a jury, had the legitimate right to consider in determining the intention of the insurance company when it wrote the letter of July 11, 1907. Equitable Life Insurance Association of the United States v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625.

We, therefore, hold that there was evidence to support the finding of the trial court that the insurance company waived the forfeiture of policy No. 1319. We think the Court of Civil Appeals erred in reversing and rendering the judgment of the trial court rendered on this policy.

The trial court rendered judgment in favor of the insurance company on policy No. 6098. By cross-assignment the plaintiff in error contended in the Court of Civil Appeals, and contends here by petition for writ of error, that this policy was in full force and effect on the date of the death of the deceased, George B. Underwood. One of her contentions is that the forfeiture as to this policy was waived by the insurance company. The trial court held otherwise, and we find very slight circumstances in the record indicating an intention on the part of the insurance company to waive the forfeiture; and from these circumstances the trial court, in passing upon the weight of the evidence, had a right to indulge the conclusion that no such intention was shown. It was legitimate for the trial court to conclude that the circumstances offered were insufficient to prove such intention. From the circumstances in evidence we could not conclude or announce that the undisputed evidence showed a waiver of the forfeiture. We would not feel authorized to disturb the judgment of the trial court upon this ground.

Another contention made by the plaintiff in error as to policy No. 6098 is that there had been no default in the payment of the premium, for it insists that the insurance company, by reason of a certain “board contract,” which was in evidence, was indebted to the deceased in a sufficient amount to pay the last year’s premium; the first year having been fully paid in cash. The “board contract” was to the effect that, in consideration that the insured “shall annually furnish the company upon its request the names of ten people residents of his county whom he deems insurable,” and, further, “shall cause the company to receive the regular premiums on an amount of insurance aggregating at least ten thousand dollars,” the company would pay the insured, within 30 days from June 30th annually during the life of the contract, a certain amount based upon the amount of insurance upon which the insured caused the premiums to be paid. Now, the contention is that the amount due the insured under this contract for the premiums which were paid by the insured on his own two policies would be sufficient in amount to pay the last year’s premium, for which there was otherwise default.

But it will be noted that under this “board contract” nothing was due to the insured unless he caused the company “to receive the regular premiums”; and in the matter of his own two policies, if they were within contemplation by the “board contract” at all, the regular premiums had not been received by the company. There was default in the payment of the second year’s premium on policy No. 6098, and in three of the quarterly premiums due on policy No. 1319. In no event could the insured be given credit for these defaulted premiums. We think the trial court and the Court of Civil Appeals were correct in holding that the “board contract” did not create a liability against the insurance company, in favor of the insured, sufficient to pay the premium which insured owed for the last year on policy No. 6098.

Another contention by the plaintiff in error in relation to policy Np. 6098 is that, a full year’s, premium having been paid on this policy, she, as beneficiary, had a vested interest therein, and as the policy itself did not provide for a forfeiture for nonpayment at maturity of the note which was given for the premium due December 31, 1906, and which note became due 90 days after date, but was not paid, the policy would not be ipso facto forfeited for such default, notwithstanding the note and contemporaneous receipt each contained such express provision, but that a forfeiture would only result after it had been properly so declared by the insurance company. When this policy was issued on December 30, 1905, the insured paid one year’s premium, but when the next 'year’s premium matured on December 30, 1906, by agreement between the insured and the insurance company the former executed his note for that year’s premium, and the insurance company gave him a receipt therefor. The note and the receipt each provided that a failure to pay the note when due would render said policy ipso facto null and void. The contention is that as the policy itself did not provide for its forfeiture for a failure .to pay a note given for a premium due would render the policy null and void, the recitals in the note and in the receipt to that effect would not be binding upon the beneficiary in the policy, who is the plaintiff in error. We think this contention should be overruled. The policy provided that a failure to pay any premium due would render it null and void. In other words, on such failure to pay any premium due the policy would, ipso facto, forfeit. We think the note given represents the premium, and takes its place in the contract. It is the equivalent of the premium, and should be treated as such when the note itself preserves substantially the provisions of the contract which relate to a failure to pay the premium for which it was given. We think the beneficiary should not be allowed to accept the benefits of the extension of the life of the policy which was provided by the execution of the note by her husband, and its acceptance by the company, and at the same time be heard to complain that it changed the contract and disturbed her vested rights. It seems inequitable for her to rely upon the note to prevent a forfeiture of the policy for a failure to pay a premium, and at the same time to repudiate the provisions of the note relating to forfeiture, when they are substantially the same provisions provided in the policy itself.

We are aware that there are reputable authorities in other jurisdictions holding a contrary view, but we decline to follow them. The judgment of the Court of Civil Appeals is reversed in part and affirmed in part. The judgment of the district court should, in all things, -be affirmed; and it is so ordered.
      <®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes