author: WILLSON, C. J.

text:
    CALFEE v. BRYANT.
    (No. 1588.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 16, 1916.
    Rehearing Denied March 23, 1916.)
    1. Tbial <§=>343 — Verdict—Constbuction.
    In an action on drafts given in payment for goods bought, where the court instructed for defendant that if plaintiff was not the owner of the drafts sued upon, or if he acted with the seller in defrauding defendant, a verdict for defendant involved findings against plaintiff! on each of such issues.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. <§=>343]
    2. Bills and Notes <⅞=>497(2) — Actions—Evidence — Bueden oe Peoof.
    In an action by the transferee of drafts given by defendant for the purchase price of goods, evidence that the transferor defrauded the defendant in the sale placed upon the transferee the burden of proving that he took the drafts before maturity in good faith and for a valuable consideration.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §| 1676, 1677, 1686, 1687; Dec. Dig. <§=>497(2).]
    3. Bills and Notes <§=>525 — Actions — Evidence — Bona Fide Owneeshlp — Stjeei-ciency.
    In an action by the transferee of drafts given in payment for goods bought, evidence held not to support a finding that plaintiff was not a bona fide purchaser of the drafts.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. <§=> 525.]
    Appeal from Hopkins County Court; Dan R. Junell, Judge.
    Action by J. S. Calfee against C. W. Bryant. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded for new trial.
    Appellee, a merchant at Como, Tex., bought certain jewelry of the National Novelty Import Company, a merchant at St. Louis, Mo., and accepted drafts drawn on him by that company for the amount of the purchase price thereof. The drafts were five in number, were dated January 24, 1914, and were for $59.20 each, payable to the order of the import company. Appellant claimed that on February 21 or March 6, 1914, the import company sold and indorsed and delivered the drafts to him. Two of them, when they became due, were paid by appel-lee to appellant. The suit was by appellant on the other three, payable, respectively, in seven, nine, and twelve months from their date. The defenses interposed by appellee: (1) That appellant was not the owner of the paper, but was holding same for the import company; (2) that the consideration for appellee’s promise had failed; and (3) that appellee was induced to buy the jewelry and accept the drafts as the result of fraud practiced upon him by the import company’s selling agent. The trial resulted in a verdict and judgment in appellee’s favor.
    T. J. Flewharty and R. B. Keasler, both of Sulphur Springs, for appellant. R. D. Allen, of Sulphur Springs, for appellee.
   WILLSON, C. J.

(after stating the facts as above). We do not think the action of the court made the basis of the first assignment, in overruling the objection to a question propounded to appellant as a witness, which he refused to answer, was error. The question was not an improper one, in view of the issues made by the pleadings, and ap-pellee had a right to ask it.

In his charge, the correctness of which appellant did not question in the court below and does not question here, the court instructed the jury to find for appellee if they believed appellant was not the owner of the drafts sued upon, or if they believed he “acted together with the National Novelty Import Company or O. P. Blackstad (its president), or either of them, in defrauding” appellee; and to find for appellant if they believed he purchased the drafts, “paying therefor a valuable consideration, before maturity thereof, without any knowledge of any defense” of appellee to same. The verdict involves findings against appellant on each of those issues. The disposition which should be made of the appeal depends upon whether there was testimony to support such findings, or any of them, or not.

The contract covering the sale and purchase of the jewelry was in writing. It was not copied in full in the record sent to this court, but, from a brief of it given there, it appears that the jewelry consisted of “many hundreds of articles,” that appel-lee was to pay $296 for same, that the import company “warranted” the goods and agreed that appellee might exchange any of same for other jewelry it handled, and further agreed to make and deliver to appellee a bond to secure him in the performance by it of its undertaking. The bond was afterwards delivered to appellee.

Appellee and appellant, each testifying in his own behalf, were the only witnesses. Ap-pellee testified that he was induced by rep-resentations made to him by the import company’s selling agent as to the quality of the jewelry, which proved to be false, to buy same. But he further testified that he “could not say that all the jewelry was bad,” and that in every instance when he complained to the import company about particular pieces of the jewelry, because they were not as it had represented and warranted them to be, the company promptly, as it had agreed to do, replaced such pieces with others. If this testimony should be construed as sufficient to support a finding that the import company practiced fraud on appellee, its effect, it seems from the ruling made by the Supreme Court in Prouty v. Musquiz, 94 Tex. 87, 58 S. W. 721, 996, would he to place upon appellant the burden of proving that he obtained the drafts sued upon before the maturity thereof, in good faith and for a valuable consideration. Appellant by deposition testified to facts showing he did that; and, unless it should be said that there was testimony tending to show to the contrary, the judgment should have been in his favor. Appellee insists there was testimony tending to show that the import company, and not appellant, was the owner of the drafts, and, if appellant was the owner, that he was chargeable with notice of defenses, he had a right to interpose to a suit by the import company on the drafts. The facts established by testimony relied upon to support this contention are consistent, we think, with ap-pellee’s claim that he was a bona fide purchaser, and are not alone sufficient to support a finding to the contrary. Perhaps the most favorable view which could be taken of them, in support of appellee’s contention, is that they justified a doubt as to whether appellant was the owner of the drafts, and, if he was, whether he was a bona fide owner.

The judgment will be reversed, because without evidence sufficient to support it; and the cause will be remanded for a new trial, because the record indicates that other testimony on the issues referred to may be procurable.
      <g=»For'other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    HENDERSON v. HALEY.
    (No. 542.)
    (Court of Civil Appeals of Texas. El Paso.
    March 30, 1916.)
    Public Lands <©=173(22) — Lands of State —Illegal Fobfeituee — Statute of Limitation — “Pebson Claiming Right to Pub-chase ob Lease Public Fbee School Lands.”
    Under Rev. St. 1911, arts. 5458, 5459, providing that all persons claiming the right to purchase or lease any public free school lands, etc., which have been or may be sold or leased to any .other person, shall bring suit within a year after the award of such sale or lease, and not thereafter, and that if no suit has been instituted by any person claiming the right to purchase or lease within a year it shall be conclusive evidence that all the requirements of the law with reference to the sale or lease have been complied with, a purchaser of public free school lands, who complied with the provisions of the law relative to occupancy and improvement, against whom the land commissioner forfeited the sale without warranty and illegally, could sue, in trespass to try title, the party to whom the commissioner subsequently awarded the lands, more than a year from the date of the award after the. forfeiture against him, not being' a “person claiming the right to purchase or léase public free school lands,” within the meaning of the statute.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. § 549; Dec. Dig. <©=173(22).]
    Appeal from District Court, Brewster County; W. C. Douglas, Judge.
    Suit by L. Haley against R. L. Henderson. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    • Martin & Martin, of Alpine, for appellant. W. Van Sickle, of Alpine, and Geo. M. Thurmond, of Del Rio, for appellee.
   HIGGINS, J.

Haley brought this suit in trespass to try title to recover of Henderson the N. E. ¼ of section 14 in block WJGS, surveyed by virtue of certificate No. 3735 issued to the Gulf, Colorado & Santa Fé Railway Company. On September 14, 1904, the Commissioner of the General Land Office, upon application filed September 10, 1904, sold and awarded to Haley section 5 in block 13, Galveston, Houston & San Antonio Railway Company survey as an actual settler ; the same being public free school land. On April 5, '1906, the commissioner sold and awarded to Haley, upon application filed the same day the E. ½ of said section 14; the same likewise being public free school land. The E. ½ of 14 was sold as additional to the said home section No. 5. On September 24, 1907, the commissioner forfeited aforesaid sales, and indorsed upon Haley’s purchase-money obligations, “Land forfeited for failure to reside upon and improve same as required by law,” and placed the lands upon the market for sale. On October 5, 1907, Henderson applied to purchase sections 5 and 14, and on October 8, 1912, the commissioner awarded the same to him as additional to his home section No. 3. On December 12, 1912, Haley filed a suit against Henderson in trespass to try title to recover section 5 and S. E. ¾ of section 14. For some reason the N. E. ⅛ of section 14 was not embraced in that suit. In said suit Henderson pleaded not guilty. In response to special issues, the .jury in that suit found that on September 10, 1904, Haley was an actual settler upon his home section 5 when he applied to purchase same, and actually in person resided upon and occupied the same continuously from September 10, 1904, to September 10, 1907. No issue as to improvements was submitted. Upon such findings, the court in such case entered judgment in Haley’s favor, and the same has become final. On September 1, 1914, Henderson filed in the General Land Office proof of occupancy of his home section 3, and certificate of occupancy based thereon was issued by the commissioner. At some time subsequent to September 22, 1914, the Land Commissioner canceled the sale to Henderson of section 5 and the N, E. ⅝ of section 14 and reinstated the Haley purchase thereof, and on November 19, 1914, issued to Haley a patent thereto; such action being based upon the aforesaid judgment rendered in Haley’s favor in the suit filed December 12, 1912. Henderson has been in possession of the N. E. ¼ of section 14 since it was awarded to him on October 8, 1912. No suit therefor was brought by Haley until this suit was filed on August 18, 1915.

It is conceded by appellant that the judgment rendered in Haley’s favor in the suit filed December 12, 1912, is res judicata of Haley’s occupancy of his home section No. 5 and improvement of the lands purchased by him in the manner required by law, and that Henderson in the present suit is precluded from questioning the same. He contends, however, that Haley’s right of recovery herein is barred by the provisions of articles 5458 and 5459, R. S., commonly referred to as the one statute of limitation. The opinion .of the 'Supreme Court in Nations v. Miller, 183 S. W. 153, recently handed down and not yet officially reported, is decisive of the question presented, and, upon the facts stated, establishes the inapplicability of the statute mentioned.

In the suit filed December 12, 1912, it was established that Haley had complied with the provisions of the law relative to occupancy and improvement, and the action of the commissioner in forfeiting the sale to him was without warrant, in fact, and therefore illegal. His right to the land was unaffected by the unauthorized action of the land commissioner in forfeiting the sale of the land to him. His right was “that of an established lawful purchaser, already invested with his interest in virtue of a prior valid sale, originally binding upon the state and still subsisting in full force under the law.” He was not a person “claiming the right to purchase or lease” public free school land within the meaning of the statute mentioned, and the same does not bar his right of recovery herein.

Affirmed.
      (JSssFor other oases see same topic and ICBY-NUMBBR in all Key-Numbered Digests and'Indexes


author: HODGES, J.

text:
    LEE v. FRATER.
    (No. 1590.)
    (Court of Civil Appeals of Texas. Texarkana.
    March 9, 1916.)
    1. Bastards ®=w102 — Property—Inheritance from Mother-Statute.
    Dnder Rev. St. 1911, art. 2473, giving an illegitimate child the right to inherit from its mother, and article 2469, providing for the descent of community property to the surviving husband or wife in the event that the deceased spouse left no descendants, an illegitimate child of a married woman, her only surviving issue, inherits Ms mother’s share of community property ; the provisions of the statute limiting the right of the husband to inherit the community property to those instances where the deceased wife leaves no child or children meaning any child capable of taking property by inheritance.
    [Ed. Note. — For other cases, see Bastards, Cent. Dig. §§ 254, 255; Dec. Dig. <⅜=3102.]
    2. Vendor and Purchaser <&wkey;244 — Bona Fide Purchaser — Inheritance—Notice oe Right — Sueeiciency oe Evidence.
    In suit for partition by the illegitimate son of a married woman against a purchaser from her husband, evidence that the purchaser had actual notice that plaintiff was’ the surviving child of the married woman and had an interest in the property in controversy held sufficient to support judgment for plaintiff.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 609-611; Dec. Dig. <&wkey;>244.]
    3. Appeal and Error &wkey;>739 — Assignment oe Error — Multieariousness.
    An assignment of error that the court erred in charging on innocent purchaser in good faith and in. refusing to give three special charges presenting three different phases of the question was improper as multifarious.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3634^-3036; Dee. Dig. &wkey;> 739.]
    4. Appeal and Error &wkey;>742(7) — Assignment oe Error — Presentation.
    An assignment of error consisting of a copy of the motion for new trial, not being labeled “assignment of error” in the brief, and the motion being copied at length without any proposition or statement, could not be considered, not being presented in accordance with the rules for Courts of Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Doc. Dig. <&wkey;>742(7).]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Suit by Shadrick Frater against J. R. Lee. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. L. Faulk, J. J. Faulk, and N. Frank Faulk, all of Athens, for appellant. Miller & Miller, of Athens, for appellee.
   HODGES, J.

This suit was instituted by Shadrick Frater for partition of 141.6 acres of land situated in Henderson county. The appellee claimed to be the owner of an undivided half interest. The appellant, defendant below, answered by a plea of not guilty, and specially pleaded limitation. A trial before a jury resulted in a verdict in favor of Frater for one-half of the land.

The land was originally the community property of Green Curington and his former wife, Marilda Curington, both of whom had been slaves. The following appear to be the undisputed facts: The appellee is the illegitimate son of Marilda, the deceased wife of Green Curington. He was born in 1850 while his mother was a slave. Plis father and mother never lived together after the war. During the infancy of the appellee his mother was brought to Texas from North Carolina, where she met Green Curington,, with whom she lived as his wife until her death in 1886. The property in controversy was accumulated by them some time prior to her death. Green Curington married a second time, and he and his second wife continued to reside upon the premises until the death of the latter some years later. No children were born to Marilda and Green Curington, and the only children of Marilda in existence at the time of her death were the appellee and some illegitimate brothers and sisters. He testifies, however, that ‘these were dead at the time of the trial, and that no descendants were left. In 1908 Green Curington sold the land to the appellant, Lee, in consideration of a few hundred dollars paid in cash.- The testimony as to whether or not Lee knew at the time of his purchase of the existence of the claim of the appellee to any portion of the land was conflicting.

There are two propositions urged upon this appeal. One is that the appellee, being an illegitimate child, could not inherit his mother’s interest in community property left by her at her death. The right of an illegitimate child to inherit from its mother is now provided for by Rev. St. 1911, art. 2473, which was originally enacted by the Texas Congress and approved January 28, 1840 (Acts 1840, p. 132). About eight days before that statute was passed the same Congress enacted another law providing for the descent of the community property to the surviving husband or wife in the event that the deceased spouse left no descendants. See Acts 1840, p. 3. That provision, after undergoing some modification by amendments adopted at different times, is now article 2469 of our Revised Civil Statutes and a part of the general law relating to the -descent and distribution of property. In the -case of Berry v. Powell, 101 Tex. 55, 104 S. W. 1044, 16 Ann. Cas. 986, and the same case in 47 Tex. Civ. App. 599, 105 S. W. 345, the Supreme Court and the Court of Civil Appeals for the Fifth District had under consideration that provision of the statute which permits bastards to inherit through their mothers. In each case the court decided that this provision of law, having been enacted for the purpose of correcting a manifest injustice of the common law which deprived illegitimate children of the right of inheritance of any sort, should be liberally construed. If the purpose of that law was to remedy an admitted wrong, then to so construe it as to hold that bastards may now inherit from their mother only her separate property is to furnish them only partial relief. It would be placing upon their right of inheritance a limitation without any satisfactory reason. Our attention has not been called to any case where the courts of this state have made such a distinction, although the law has been in existence for three-guar-ters of a century. That provision of the statute which limits the right of the husband to inherit community property to those instances where the deceased wife leaves no child or children evidently means any child capable of taking property by inheritance. . The proposition urged by the appellant, we think, is unsound, and the assignment based upon it is overruled. It is also contended that the court erred in charging the jury that the burden of proof was on the defendant to show that he was an innocent purchaser for value. It is conceded by the appellee, and by the court in his qualification of a bill of exception, that such a charge was abstractly incorrect. We have taken occasion to examine carefully the testimony relative to notice. Three witnesses testified, some of whom appear to have been disinterested, that the appellant did have actual notice that the appellee was the surviving child of Marilda Curington and had an interest in the property in controversy. This testimony is contradicted by that of the appellant alone. He admits that he was personally acquainted with the appellee, and had been for a number of years, but denies that he knew that he was the son of Marilda Curington. We have concluded from our investigation that the judgment rendered is supported by the over-, whelming weight of the evidence.

The ' assignment in the appellant’s brief questioning the action of the court in giving the offensive charge is not presented in accordance with the rules prescribed by our Supreme Court for briefing cases. His assignments consist merely of a copy of the motion for a new trial. None o.f them is labeled “assignment of error” in the brief, and the motion is copied at length apparently just as it appeared in its original presentation. The first paragraph of that motion is as follows:

“The court erred in charging the jury that the burden of proof was on the defendant to show that he was an innocent purchaser in good faith, and in refusing to give the special charges numbers 2, 3 and 5, to the effect as follows.”

Then follow three separate special charges, presenting as many different phases of the question raised, all of which appear to have been refused by the trial judge. This assignment," if it be treated as such, is not only multifarious in presenting more than one ruling of the court as a ground of error, but also is without any proposition or any statement which entitled it to consideration. This court has never been disposed to require a rigid adherence to the rules in briefing cases as a condition upon which assignments will be considered; but in a case like the present, where we think the proper judgment has been rendered, we are not inclined to ignore the rules in order to sustain an objection which we think is wholly without any real merit.

The judgment of the trial court is therefore affirmed.
      ^wFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    UNITED STATES FIDELITY & GUARANTY CO. v. PRESSLER.
    (No. 1563.)

    (Court of Civil Appeals of Texas. Texarkana.
    March 29, 1916.
    Rehearing Denied April 13, 1916.)
    1. Insurance <@=539(3) — Casualty Insurance — “Immediate” Notice.
    Under Rev. Civ. St. art. 5714, providing that no stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall be valid unless reasonable, construed as not including a stipulation regarding the occurrence of an accident insured against and as limited to claims forming the basis of a suit for damages, the provision of a policy of casualty insurance, requiring insured to give immediate written notice of an accident, was satisfied by notice on October 25th of an accident on October 9th, the word “immediate” meaning without any time intervening, without any delay, present, instant, and covering notice with due diligence under the circumstances of the case and without any unnecessary and unreasonable delay.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1329; Dec. Dig. @=o539(3).
    For other definitions, see Words and Phrases, First and Second Series, Immediate.]
    2. Insurance @=»6G5(4) — Casualty Insurance-Judgment against Insured — Collusion — Evidence.
    Evidence, in .a contractor’s action on a policy of casualty insurance, to recover the amount paid an employe, held, to show that the judgment in favor of the employé against the insured was not the result of collusion and fraud.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 1555, 1722; Dec. Dig. @=>665(4).]
    3. Insurance @=514^-Casualty Insurance
    —Disclaimer op Liability — Eepect. Where the insurer, having notice of an accident to the insured’s employs, disclaims any liability and refuses to make any defense, it cannot, in thereafter defending an action by the insured, complain that the insured has made a reasonable and just settlement with the injured party, and this is so though the policy provides against compromising claims without the insurer’s written consent, and that no action shall lie against the insurer for loss under the policy unless brought for reimbursement of money actually paid on a judgment.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1298; Dec. Dig. @=>514.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Action by Joe M. Pressler against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Hunt, Myer & Teagle, of Houston, and John C. Box, of Jacksonville, for appellant. Lee G. Carter, of Jacksonville, Norman, Shook & Gibson, of Rusk, and W. J. Townsend, Jr., of Jacksonville, for appellee.

       Application for writ of error pending in Supreme Court.

   HODGES, J.

In October, 1913, the appel-lee, J. M. Pressler, was a contractor engaged in the construction of a building in Jacksonville, Tex. In the prosecution of his business he employed laborers, among .whom was his father, Otto Pressler. On the 9th of October, 1913, Otto Pressler, while engaged in the performance of his duties, fell from a scaffold and sustained serious bodily injuries. At the time of this accident the ap-pellee held an employers’ liability policy of insurance, provided that for a stated consideration the appellant agreed to indemnify the appellee against loss from liability imposed by law upon him for damages on account of bodily injuries or death suffered by his employes through his negligence and as the result of an accident occurring while the policy was in force. The policy contained, among others, the following provisions:

“A. Upon the occurrence of an accident, the assured shall give immediate written notice thereof, with the fullest information obtainable at the time, to the company at its home office or to the agent who has countersigned this policy. If a claim is made on account of such accident the assured shall give like notice thereof with full particulars. If thereafter any suit is brought against the assured to enforce such a claim, the assured shall immediately forward to the company at its home office every summons or other process as soon as the same shall have been served on him. The company reserves the right to settle any claim or suit. Whenever requested by the company, the assured shall aid in securing information, evidence and the attendance of witnesses in effecting settlements and in prosecuting appeals. The assured shall at all times render to the company all co-operation and assistance within his power.”
“C. The assured shall not voluntarily assume any liability nor interfere in any negotiations or legal proceedings conducted by the company on account of any claim; nor, except at his own cost, settle any claim; nor without the written consent of the company previously given, incur any expense, except that he may provide at the time of the accident, and at the cost of the company, such immediate surgical relief as is imperative.”
“I. No action shall be brought against the company under or by reason of this policy unless it shall be brought by the assured for a loss, defined hereunder after final judgment has been rendered in a suit described hereunder and within two years from the date of such judgment, to wit: For a loss that the assured has actually sustained by the assured’s payment in money — (a) of a final judgment rendered after a trial in a suit against the assured for damages on account of the negligence of the assured; (b) of the expenses (excluding any payment in settlement of a suit or judgment) incurred by the assured in the defense of a suit against the assured for damages on account of the negligence of the assured. The company does not prejudice by this condition any defense against such action as it may be entitled to make under this policy.”

Some time after the injury both the appel-lee and. his father concluded that the accident occurred under circumstances which made the appellee liable for the resulting damages. Written notice, of the accident and the claim for damages was given on the 25th of October following the injury, about 16 days after its occurrence. Some time during the following month the appellant, through some of its agents, made an investigation of the circumstances attending the accident, but refused to make any settlement of the claim. Suit was then filed by Otto Pressler against the appellee for damages. Notice of the institution and pendency of that suit was promptly given to the appellant, but it refused to take any part in the defense or to become a party to the proceeding. A judgment was thereafter rendered in that suit, in favor of Otto Pressler against the appellee for the sum of $3,500 as damages for the injuries sustained. This amount .was settled by the appellee and his father in some manner satisfactory to them. Upon the refusal of the appellant to reimburse the appellee this suit was instituted.

■ In response to special interrogatories the jury found the following facts: (1) That “immediate” notice .was given to the appellant by the appellee of the accident and injury to his father, in the manner and form required by the policy; (2) that this notice was given on the 25th of October following the injury; (3) that the appellee gave due notice to the appellant of the suit instituted against him by his father; (4) that the appellant, after having received these notices, denied its liability and failed and refused to defend the suit after having full opportunity to do so; (5) that the judgment in that case was not obtained by collusion or fraud, and was not rendered by agreement between the parties; (6) that neither the appellee nor his attorneys encouraged or assisted Otto Press-ler in bringing the suit and recovering the judgment in that case; (7) that the appellant after having received notice of the injury in October, 1913, investigated the accident to Otto Pressler, and by such conduct waived the giving of an earlier notice; (8) that the appellant sustained no injury by reason of not having received a notice of the injury on the day that it occurred, or prior to the time it did receive such notice; (9) that the appellant had an opportunity and did make an .investigation of the facts and circumstances surrounding the accident to Otto Pressler, while the condition of the scaffolding and location of the witnesses to the accident and injury were substantially the same as they were at the time the accident occurred; (10) that the appellee had paid in money the amount of the judgment and costs rendered against him in favor of his father; (11) that Otto Pressler was injured to the extent of $3,500; (12) that the item of $150 claimed by the appellee as attorney’s fees paid to Lee G. Carter was incurred by him in a bona fide effort to defend the suit b.y his father; (13) that the appellee had paid the judgment in good faith. Upon these •findings the trial court entered a. judgment .in favor of the appellee against the appellant for $3,500, together with $9.65, the amount of costs paid in the suit of Pressler v. Press-ler, and. $150 as attorney’s fees incurred by the appellee in defending that suit. The appellant’s brief contains a number of different assignments of error, some of them presenting the same question in different forms. There appear, however, two principal grounds upon which it relies for a reversal : (1) The failure of the appellee to comply with the terms and conditions of the policy, requiring the giving of “immediate” written notice of the accident; and (2) that the judgment in favor of Otto Pressler against the appellee was the result of collusion and fraud.

As will be observed from the quoted extracts from the policy, this instrument required • “immediate ■ written notice” of two facts, the occurrence of the accident, and the presentation of a claim for damages resulting from the injury. It is conceded that a failure to give notice of the claim for damages constitutes no defense, inasmuch as the limitation prescribed is in conflict with article 5714 of the Revised Civil Statutes. But it is contended that this provision of the law does not include stipulations regarding the occurrence of the accident; that the statute is limited to claims which form the basis of a suit for damages. Assuming that this is a correct construction of that article we do not think it can be said as a matter of law that the notice given in this instance was not such as the parties contemplated should be given when making that contract. To give the term “immediate” its literal signification, regardless of the attending situations and circumstances, would defeat many meritorious claims upon purely technical grounds. In the case of Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 Sup. Ct. 833, 40 L. Ed. 1193, Justice White rendered an opinion which involved the construction of the .word “immediate” used in a contract not materially different from that here under consideration. In that ease “immediate notice” was also required. The court, in quoting approvingly from another case, said:

“The defendants’ liability depends in part upon the answer to the question whether the plaintiffs gave them ‘immediate’ notice in writing of O’Connell’s accident, the claim made on account of it, and the suit that was brought to enforce the claim. This involves an ascertainment of the meaning of the word 'immediate’ as used in the policy. The word, when relating to time, is defined in the Century Dictionary as follows: ‘Without any time intervening; without any. delay; present; instant; often used, like similar absolute expressions, with less strictness than the literal meaning requires — as an immediate answer.’ It is evident that the word was not used in this contract in its literal sense. It would generally be impossible to give notice in writing of a fact the instant it occurred. It cannot be presumed that the parties intended to introduce into the contract a provision that would render the contract nugatory. As ‘immediate’ was understood by them, it allowed the intervention of a period of time between the occurrence of the fact and the giving of notice more or less lengthy, according to the circumstances. The object of the notice was one of the circumstances to be considered. If it was to enable the defendants to take steps for their protection that must necessarily be taken soon after the occurrence of the fact of which notice was to be given, a briefer time would be required to render the notice immediate according to the understanding of the parties than would be required if the object could be equally well attained after considerable delay. ⅜ ⅜ * The parties intended by the language used that the notice in each case should be given so soon after the fact transpired that, in view of all the circumstances, it would be reasonably immediate. If a notice is given ‘with due diligence under the circumstances of the case, and without unnecessary and unreasonable delay,’ it will answer the requirements of the contract (citing authorities). Whether the notices were reasonably immediate — like the kindred question of what is .a reasonable time — are questions of fact that must be determined in the superior court.”

The language quoted is applicable to the case before us, and renders further discussion of that unnecessary.

If the terms of the policy concerning notice had been complied with, then it follows that the appellant was bound by the judgment rendered in the suit of Press-ler v. Pressler, unless that judgment was col-lusively obtained. That particular issue was fairly submitted to the jury and answered favorably to the appellee. The evidence, we think, is sufficient to .sustain that finding. An employer, holding a policy of the kind here sued on, is not, under all circumstances, compelled to stubbornly resist through the courts a just claim for damages. Where the insurance company, having notice, disclaims any liability and refuses to make any defense, it cannot thereafter complain that the' insured has made a reasonable and just settlement with the injured party. In the case of St. Louis Dressed Beef & Provision Co. v. Maryland Casualty Go., 201 U. S. 173, 26 Sup. Ct. 400, 50 L. Ed. 712, it was held that the amount paid by an employer in the prudent settlement of suits against him, founded upon negligence of an employs, may be recovered from the insurer against loss resulting from negligence, where the • insurer had denied all liability and refused to defend the suits as provided in the policy. This is true, although the policy contains a .condition against compromising claims of that character without the written consent of the insurer, and a further provision that no action shall lie against the insurer for any loss under the policy, unless it was brought by the assured for reimbursement for loss actually sustained and money paid by him in satisfaction of a judgment after a trial of the issue.

The fact that the parties to the suit of Pressler v. Pressler were near relatives, while a circumstance favorable to an inference of fraud and collusion, does not make such an inference irresistible. The judgment of the district court will therefore be affirmed.
      igz^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©r^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    KOLP et al. v. S. F. SCATTERGOOD & CO.
    (No. 8316.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Feb. 12, 1916.
    Rehearing Denied March 18, 1916.)
    1. Principal and Agent 3=3123(7) — Relation — Sufficiency of Evidence.
    Evidence in a buyer’s suit for profits lost by defendant’s refusal to deliver a quantity of bran according to its contract, held to show that the seller’s agent was authorized to bind him by the contract of sale.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. § 426; Dec. Dig. <§=>123(7).]
    2. Appeal and Error <§=>1057(1) — Admission of Evidence — Verdict.
    In such suit, error, if any; in overruling an objection to the answers of the agent on the ground that bis written contract of employment was the best evidence, and that the alleged agen-' ey could not bo established by bis statements after the termination of his employment, was harmless, in view of the evidence establishing his authority to bind the defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4196; Dec. Dig. <§=> 1057(1).]
    3. Appeal and Error <§=683 — Showing of Error.
    In the absence of any record showing of the facts alleged as a basis of an objection to depositions, the appellate court cannot say that the court erred in its ruling.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2907; Dec. Dig. <§=>683.]
    4. Appeal and Error <§=>1057(1) — Harmless Error — Admission of Hearsay.
    In a suit for damages for defendant’s breach of its contract to sell and deliver bran to plaintiff, error, if any, in overruling an objection to the testimony of the plaintiff and the broker as to the sale on the ground that it was hearsay, and that the telegrams, letters, etc., were the best evidence of the transaction, was harmless, where those documents were put in evidence and established the contract of sale.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4194-4196; Dec. Dig. <§=> 1057(1).]
    5. Ajppeal and Error <§=>1067 — Harmless Error — Refusal of Instructions.
    In such suit, the refusal to instruct on issues not controverted under the evidence was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. <§¿>1067’; Trial, Cent. Dig. § 475.]
    6. Appeal and Error <§=>1064(1) — Harmless Error — Instruction on Damages.
    In a suit for damages from a breach of a contract to sell and deliver bran, where the record showed that plaintiff purchased it at the market price, an instruction that the damage was the difference between the market value of bran during the time for delivery and the contract price was not objectionable on the ground that the correct measure of damages was the difference between the contract price and the price actually paid.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. <§=>1064(1); Trial, Cent. Dig. § 553.]
    7. Appeal and Error <§=>1151(2) — Review-Amount of Recovery.
    In such suit, where the pleadings alleged aggregate losses to the amount of $975, a verdict and judgment allowing for loss of profits in the sum of $1,000 would be reformed and reduced to the amount of recovei’y claimed.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4498-4500, 4503-4505; Dec. Dig. <§=>1151(2).]
    Error from District Court, Tarrant County; Marvin I-I. Brown, Judge.
    Suit by S. F. Scattergood & Co. against E. R. and D. C. Kolp. Judgment for plaintiff, and defendants1 bring error.
    Reformed and affirmed.
    Flournoy, Smith & Storer, of Ft. Worth, for plaintiffs in error. Baskin, Dodge & Eastus, of Ft. Worth, for defendant in error.
   DUNKLIN, J.

Upon the occasions hereinafter mentioned, E. R. & D. C. Kolp were wholesale dealers in grain and mill products, having an office and place of business in St. Louis, Mo., and also in Ft. Worth, Tex.

On June 21, 1910, Louis J. Jones, their manager in charge of the St. Louis office, for and in their behalf, contracted with the partnership firm of S. F. Scattergood ■& Co., doing business in Philadelphia, to sell them. 30 cars of bran, of 20 tons each, 10 cars to be delivered during the month of July, and the same amount during each of the months of August and September following. The installment for July was delivered in accordance with the contract, but the Kolps refused to deliver the other two installments. Scattergood & Co. then instituted this suit against them to recover the alleged profits they would have realized but for such refusal, fixed at the difference between the contract price and the prices they were compelled to pay for the bran on the market; and from a judgment in their favor the defendants have prosecuted this writ of error.

The principal defense urged to the suit was that Louis J. Jones had no authority from defendants to bind them by the contract alleged and upon which the recovery was allowed.

The evidence showed without controversy that the alleged contract was in fact made by Louis J. Jones, acting as the manager of the business of the Kolps, in St. Louis, through Wm. P. Brazer, a broker residing in Philadelphia, acting upon telegraphic instructions from Jones, and that after it was made by the broker it was confirmed in writing by Jones, the telegrams and the written confirmation being introduced in evidence. That proof was procured through depositions of different witnesses, one of whom was Jones himself, who also testified as follows:

“During the month of June, 1910, I was manager of the S.t. Louis office of E. R. & D. O. Kolp, and as such manager my duties were to transact regular grain and feed business, buying and selling grain on the St. Louis markets. X opened up the St. Louis office as manager in December, 1909, and continued as manager of said office until August 1, 1910. I had a written contract with E. R. and D. O. Kolp giving me authority to act as manager of the St. Louis office. This contract was made out in duplicate, E. R. & D. O. Kolp, at Ft. Worth, having the original, and I, at the time, had a duplicate, although I cannot say at this time whether I still have it in my possession or not.”

The defendants objected to those answers of the witness, on the ground that the written contract of employment referred to was the best evidence; and, further, that the alleged agency could not be established by statements of the agent after the termination of his employment; and error has been assigned to the action of the court in overruling the objection.

The defendants' introduced in evidence their written contract with Jones employing him as general manager of their St. Louis office, and containing the following stipulation:

“This contract to be in force until June 15, 1910, and if, at the time said E. R. & D. C. Kolp take their annual inventory, said Jones is in their employ and in charge of the St. Louis office, the profits of said office for the period covered by this contract will be divided as follows:”

The following correspondence was also introduced in evidence: Letter from Scatter-good & Co. to the Kolps dated August 25, 1910, demanding shipment of the 10 cars of bran due for August under the contract of sale made by Jones. Letter from the Kolps in reply, dated August 27, 1910, containing the following:

“With reference to the trade made with you by Mr. Jones from St. Louis, will state that within the last few days we have looked carefully into this matter, and find that he entered into ■ a speculative deal with you, contrary to his contract with us and in direct violation of his instructions. When we learned of these speculative sales he made on June 21st, we wired him instantly to cancel them.
“We do not believe you have a valid contract against us for this bran, and, until we are shown to the contrary, we cannot agree to ship. •
“We might say, further, that Mr. Jones plunged into the rankest kind of speculation, selling 200 cars of bran short, which, as before stated, was without our authority, in direct violation of our instructions and also our wiz-ed orders to cancel these purported sales.”

The statements last copied impliedly admit that Jones was defendant’s general manager, and it was shown by other testimony, which was uncontroverted, that the sale to .plaintiffs was not such a deal as the Kolps in their letter claimed Jones was not authorized to make.

In view of that admission, and the failure of either of the defendants to testify on the trial, and of the further uncontroverted proof that Jones in fact continued as manager of the St. Louis office until August 1, 1910, after furnishing the 10 cars of bran contracted to be delivered in July, thus established beyond controversy the authority of Jones to make the contract, the error, if any, in the ruling now under discussion was harmless. It might be added, further, that, at all events, the statement that Jones had continued to hold the position of manager until August 1st was not subject to the objections urged, and the rule is well settled that, if a part of testimony which is objected to as a whole is admissible, there is no reversible error in overruling the objection.

The purchases made by plaintiffs to supply the bran which defendants failed to furnish during the months of August and September, the prior demands therefor made of defendants, and the prices which plaintiffs were compelled to pay were all established beyond controversy, in part by depositions of different witnesses, and in part by documentary evidence. Defendants objected to several of those depositions, upon the ground that they were not taken by officers authorized by law to take them nor properly certified; but there is no showing in the record that the facts so alleged as a basis for the objection were true, and in the absence of such a showing we are unable to say that the court erred in the ruling.

Another objection urged to the testimony of plaintiff S. F. Seattergood and the broker, W. P. Brazer, relative to the sale in controversy, was that it was hearsay, and that, as all negotiations between them and Jones were by telegrams and letters, those documents would be the best evidence of such transactions. As those documents were introduced in evidence and established the contract of sale beyond controversy, there was, at all events, no reversible error in the ruling.

Complaint is made of the refusal of the court to submit certain special issues requested by defendants, viz. when did plaintiffs give instructions for the August and September shipment, when did they buy to fill these orders, and what prices did they pay? Under the evidence those were not controverted issues and no harm to defendants resulted from a failure to submit them.

The measure of damages submitted to the jury and found by them was the difference between the market value of bran during the months of August and September and the contract price. Complaint is made of that instruction on the ground that the correct measure of plaintiffs’ damages would be the difference between the contract price and the prices actually paid. The record conclusively shows that plaintiffs purchased the bran at market pricés; hence the defendants were accorded the full benefit of that rule for measuring the damages, and are in no position to complain of harm by the submission of the issue in that form.

We do not concur in the contention made that the depositions of plaintiffs S. F. Scat-tergood show that plaintiffs supplied the bran due in August and September for less than the contract price. A proper construction of the exhibits attached to his depositions conclusively supports the judgment.

But we are of the opinion that the judgment is for a greater amount than was warranted by plaintiffs’ pleadings, according to which the aggregate losses sustained by them was $975, while by the verdict and judgment they were allowed for loss of profits in the sum of $1,000. Accordingly the judgment will be so reformed as to reduce the amount of recovery to $975, with interest thereon at the rate of 6 per cent, per annum up to December 3, 1914, the date of trial in the court below; interest on $450 of said sum to be computed from September 7, 1910, and on $525 from September 17, 1910.

All other assignments of error are overruled.

Reformed and affirmed, and costs of appeal taxed against defendants in error.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MUELA v. MOYE.
    (No. 591.)
    (Court of Civil Appeals of Texas. El Paso.
    March 30, 1916.)
    1. Appeal and Error <©=> 101(1) — Orders Ap-pealable — Counts' Court — Appointment of. Receiver.
    In the absence of statute, no appeal lies to the Court of Civil Appeals from an interlocutory order of the county court appointing a. receiver; Rev. St. 1911, § 2079, authorizing an. appeal from an interlocutory order of the district court appointing a receiver or trustee in any cause, not applying.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 681-685; Dec. Dig. 101(1).]
    2. Appeal and Error <g=»l — Right op Appeal-Statutory Authority.
    No right of appeal exists in a particular-case, unless conferred by statute.
    [Ed. Note. — For other cases, see Appeal andi Error, Cent. Dig. §§ 1 — 4; Dee. Dig. <¿=>1.]
    Appeal from El Paso County Court; Adrian Pool, Judge.
    Proceedings by Max Moye against Caye-tano Muela. From an interlocutory order appointing a receiver, defendant appeals.
    Dismissed.
    O. L. Bowen, of El Paso, for appellant. John L. Dyer and A. R. Grambling, both El Paso, for appellee.
   HIGGINS, J.

This is an appeal from an interlocutory order of the county court of El Paso county, appointing J. Harley receiver of a brindle bull dog named Richard.

Max Moye filed his petition herein on January 19, 1916, and averred that he was the owner of a certain brindle bull dog about three years of age; that said bull dog answers to the name of Richard, and is the same bull dog which was given to him by one R. H. Simms, who resides in Las Cruces, N. M.; that the said brindle bull dog was-given to plaintiff by the said R. H. Simms about 14 months previously and was kept by the plaintiff on his premises at 923 N. Oregon street in the city of El Paso for about a week or ten days; that after the lapse of said time, the bull dog in some way escaped or was taken from the possession and premises of plaintiff, and was never seen by plaintiff again until January 14, 1916, when said bull dog was found in the possession of the defendant, Cayetano Muela; that the defendant unlawfully obtained possession of the above-mentioned bull dog, and is now holding possession of said brindle bull dog and claiming some right, title, or interest to said brindle bull dog contrary to the title and ownership of'the plaintiff, and the'defendant, though often requested, has failed, neglected, and refused to deliver or surrender-said brindle bull dog named Richard to plaintiff ; that said brindle bull dog is of the reasonable market value and of the actual intrinsic value of $259, lawful currency of the United States of America and that said brin-die bull dog is highly prized by plaintiff as a pet; and that the value of said brindle bull dog to plaintiff, by reason of the attachment and affection which the plaintiff has for him, is greatly in excess of said sum of $250 and cannot be measured in terms of money.

. It is further alleged that, although it would be possible to obtain possession of said brindle bull dog by sequestration process of law, nevertheless, if said process were issued and such writ was served and possession of said bull dog was obtained by plaintiff, the defendant would have the right to re-plevy said brindle bull dog, and plaintiff fears that the defendant would replevy the bull dog, and would thus defeat plaintiff’s possession of said bull dog under a writ of sequestration, and that injuries, serious in nature, would result to such bull dog, and plaintiff therefore prays the court, by reason .of such facts, and by reason of the value attaching to said bull dog as a pet, and by reason of the affection and attachment which plaintiff feels towards said bull dog, that a ■receiver be appointed to take charge of said brindle bull dog, with directions to care for said brindle bull dog and keep him safe and free from harm and in good condition until such time as suit has been fully determined and the ownership of the brindle bull dog awarded and determined by the court. The petition concluded with prayer for all the relief to which plaintiff was entitled, both legal and equitable, special and general.

Upon the date of its filing, the foregoing petition was presented to Judge Pool, judge of the county court of El Paso county, Tex., who thereupon indorsed his fiat upon the same, reciting that said petition had been presented to him, and that he had read the same, and especially that part of the petition regarding the appointment of receiver, wherefore he ordered that J. Harley be appointed receiver of said brindle bull dog, and Mr. Harley was directed to take possession .and charge of him, and to care for and keep him in good condition, safe and free from harm, and that Mr. Harley be required to give bond in the sum of $500. Upon the same day Harley filed his affidavit, in which he swore he would faithfully perform all the duties of receiver of the brindle bull dog. On the same day, a bond was filed by Max Moye, as principal, and A. J. Schütz and E. Moye, as sureties, in the sum of $500, payable to Judge Pool and his successors in office, conditioned that J. Harley would faithfully discharge all of the duties of receiver in the cause and obey the orders of the court herein. The record does not disclose any bond by Mr. Harley.

Appellant first calls attention to the fact that the bond in this case has been given by Moye instead of Harley, and complains bitterly thereof. It must be admitted there is no little merit in this plaint. Harley is the man who swore he would care for Richard, and he is the man that should have been required to give the bond to insure the faithful performance of the trust which has been confided to him. Moye, upon oath, stated he loved the dog, that he had a great affection and attachment for him, and that Richard possessed a value to him which could not be measured in mere terms of money. This bond of affection should have sufficiently relieved the court’s mind of any fear that Moye would be guilty of harsh treatment or improper conduct towards Richard, and dispensed with any necessity for Mr. Moye to give bond. But not so with Harley. The record is wholly silent as to the existence of any ties between Harley and Richard which can excuse the court’s conduct in surrendering Richard to him without a heavy bond to insure the performance of his sworn duty to the dog. In the very able brief filed by appellee’s counsel, they have not undertaken to excuse this dereliction upon the court’s part, and no reason whatever occurs to us why it should be palliated. If it be the law that brindle bull dogs may be surrendered to the tender mercies of receivers without bond, then there is little protection for them. This court will not so hold, unless impelled to do so by authority which cannot be disregarded.

Appellant makes the further contention that the action of the court in appointing Richard’s receiver was unauthorized under the general principles of equity, because the petition upon its face discloses that Moye had an adequate remedy at law by sequestration. Upon a perusal of the petition, it does seem that one of the basic reasons assigned for the appointment of a receiver is the fact that plaintiff has a legal remedy, but does not desire to use it, as it will not hamstring the defendant quite as effectually as the plaintiff desires to do. This does present a novel principle, but still we have no patience with appellant for raising the question. Had Richard been a common cur, the point, with propriety, could have been raised, and would have been well taken. But it overlooks the fact that he is not a dog of common kidney. This is apparent when, it is considered that he bears the patrician name of Richard, and was given to plaintiff by Mr. R. H. Simms, who resides in Las Cruces, N. Mv It is quite evident he is a brindle bull dog of gentle birth; that he has been carefully nurtured and protected from the degrading and contaminating influences of association with common curs or other canines whose antecedents, habits, and characters may be looked upon askance. Such being his status, it would be improper that he should be handled by an ordinary sheriff or constable under a writ of such plebeian nature as that of sequestration. The sheriff or constable would probably fail to treat him with the consideration and care which is his right and due. They might put him in the public pound. In their possession he might have to gnaw bones instead oí eating dog biscuit. In any event, it is quite likely they would permit him to associate with dogs he ought not to associate with. As a result of such association he would become lousy and perhaps mangy. • At this time there are some typhus lice roaming along the Rio Grande, and he might be bitten by one of these and come to an untimely death. So we must wholly reject the idea that sequestration was the proper remedy. Upon the contrary, the court, sitting as a chancellor, has properly taken Richard under his direct supervision and control, and intrusted him to his personal representative. Appellant has assigned no reason why a brindle bull dog should be considered beyond the pale of equity jurisdiction, and none occurs to this court.

Mr. Muela also complains of the- appointment of the receiver upon an ex parte hearing without notice to him. But it is very plain that plaintiff wanted to get Richard away from Muela before Muela knew what had happened. If notice had been given, this purpose would have been' defeated. One of the professed grounds for a receivership instead of sequestration was to prevent Muela from retaining possession of Richard.

It is also objected to the sufficiency of the petition that it fails to allege, by any specific allegation, that the brindle bull dog in question has his residence or place of abode or is within the limits of El Paso county, except as the court might infer such to be the case from the allegation that Mr. R. H. Simms, who resides in Las Cruces, N. M., gave the plaintiff said brindle bull dog about 14 months past, and that he was kept by' plaintiff on his premises at No. 928 N. Oregon street, in the city of El Paso, Tex., for about a week or ten days, and that said dog escaped, or was taken, from said premises. This objection is technical, and for that reason is overruled. In the consideration of this case, technicalities must have no place.

Appellant is also dissatisfied with the sufficiency of Moye’s allegations concerning his love and affection for Richard. We regard these allegations as quite sufficient. They adequately show the depth and warmth of his affection. Appellant and his able counsel are entirely too hard to please. All through their brief they exhibit a complaining and critical nature.

In the foregoing we have discussed the merits of this case, but such discussion will be appraised at its true value when it is considered that this court is without -jurisdiction of the appeal. We have no doubt the parties and their counsel will realize the kindly spirit in which the foregoing comments have been made. But appeals do not lie from interlocutory orders except in certain instances. This case does not fall within any exception to the general rule. Article 2079, R. S., authorizes an appeal from an interlocutory order of the district court appointing a receiver or trustee in any cause. We know, of no statute authorizing an appeal from such an order of the county court. Appellate courts can only exercise such jurisdiction as is conferred upon them by law, and no right of appeal exists in a particular case unless conferred by statute. Powdrill v. Powdrill, 134 S. W. 272. ■

For want of jurisdiction, this appeal is therefore dismissed.
      <S=oFor other cases seo same topic and KEY-NUMI1EE in all Key-Numbered Digests and Indexes-


author: HENDRICKS, J.

text:
    WALLACE v. SCHNEIDER et ux.
    (No. 944.)
    (Court of Civil Appeals of Texas. Amarillo.
    March 15, 1916.
    Rehearing Denied April 12, 1916.)
    1. Evidence &wkey;367 — Documentary Evidence — JUDGMENT 03? OTHER STATES — ADMISSIBILITY. .
    In an action to recover on a judgment of another state, proof by witness of the attached copy as a compared copy of the judgment on the original docket of the court of such state is admissible.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 1343; Dec. Dig. <&wkey;367.]
    2. Judgment <&wkey;826 — Pull FAith and Credit — Fokeign Judgment — Courts 03? Limited Jurisdiction.
    In seeking recovery on a judgment of another state it is necessary only to show that the court rendering such judgment had jurisdiction of the parties and the subject-matter, and that a judgment was rendered, and it is n'ot necessary to prove that the judgment is still in force in the state of its rendition.
    [E'd. Note. — For other eases, see Judgment, Cent. Dig. §§ 1171, 1452; Dec. Dig. &wkey;826J
    3. Judgment <&wkey;826 — Foil Faith and Credit-Foreign Judgment — Courts of -Limited Jurisdiction.
    In seeking recovery on the judgment of a court of limited jurisdiction of another state, where the creation by statute of an inferior court is proved, and the judgment rendered in such court is proved, showing affirmatively jurisdiction of the person, it is on the same plane as if rendered by a court of general jurisdiction.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1171, 1452; Dec. Dig. <®^S26.]
    4. Judgment <&wkey;822(3_) — Foreign Judgment.
    Where a judgment is recovered in one state, if proof is made that it was rendered by a court having jurisdiction of the cause and 'of the parties, it is not re-examinable upon the merits.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1500; Dec. Dig. &wkey;>822(3).]
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by E. M. Wallace against Alex Schneider and wife. From a judgment for defendants, plaintiff appeals.
    Reversed, and judgment rendered.
    Chas. C. Cook, of Pampa, for appellant. Hoover & Dial, of Canadian, for appellees.
   HENDRICKS, J.

Wallace sued the Schneiders to recover upon a Kentucky judgment obtained against them in the Franklin quarterly court of Franklin county, Ky., in the year 1908, for the sum of $152.76, 6 per cent, .interest, and. costs of suit. Upon recovery in the justice court the defendants appealed to the county court, and answered that plaintiff did not have a valid and subsisting judgment against them. The county court found that the judgment was not a valid, binding, and subsisting judgment against the defendants, for the reason that it is not shown to be one that could have been enforced “at this time, under the laws of the state of Kentucky.”

The Franklin quarterly court of Kentucky is a court of limited jurisdiction. The plaintiff proved by the judge of that court that he had examined the docket, and in his testimony describing the judgment he attached a correct compared copy of the same to his deposition. That part of the judgment we are concerned with reads:

“This cause coming on for hearing, by agreement the matters of law and fact were submitted to the court, and, the court being sufficiently advised, it is adjudged that the plaintiff recover of the defendants, Alex Schneider and Lena Schneider, the sum of $152.76, with interest thereon at the rate of 6 per cent, per annum from July 27, 1908, until paid, and for the costs herein expended.”

He also proved by the statute of Kentucky the judicial character of the quarterly courts of that state, their jurisdiction in civil cases, and other features in connection therewith unnecessary to mention.

The proof by the witness of the attached copy as a compared copy of the judgment on the original docket of the court of that state was admissible evidence for said purpose. Wolf v. King, 49 Tex. Civ. App. 41, 107 S. W. 617; St. Louis Expanded Metal Fire Roofing Co. v. Beilharz et al., 88 S. W. 512; Harvey v. Cummings, 68 Tex. 599, 5 S. W. 513; Tourtelot v. Booker, 160 S. W. 293.

The position of appellees is that in a court of limited jurisdiction, as to a judgment rendered therein, in order to form the basis of a judgment in this state, it must be shown that the judgment continues to be a valid and subsisting one under the laws of the foreign state in which it was rendered. All that that statement could mean is that such judgment, under the federal law, shall only have such faith and credit in another court within the United States as it would have by law or usage in the state in which such judgment was taken. To require that the law of the state in which the judgment was taken must be proved to the extent that it must be shown that the same continues to be a valid judgment in Kentucky, as demanded by appellant as a condition of recovery, is not the law. Appellant’s authorities do not sustain such a position.

The case of Beal v. Smith, 14 Tex. 307-311, opinion by Justice Wheeler, exhibits the extent of proof in complying with the full faith and credit clause as to the judgment of another state where it is rendered by a court of limited jurisdiction. He had under consideration a judgment rendered in a justice court in the state of Georgia. He said:

“In order, therefore, to show what effect was given to those judgments by the local law, and consequently, what faith and credit or what effect would be given to them in this state, it was necessary to have produced and proved the statute by which their jurisdiction and powers were conferred.”

'JETe suggests that, if a justice court in the state of Georgia were elevated to the character and dignity of courts of record, a different question would have been presented, meaning, of course, the transcript of the judgment of a court of general jurisdiction would prove itself. The Supreme Court bases its opinion in that case upon the case-of Thomas v. Robinson, 3 Wend. 268, by the then Supreme Court of New Fork. Judge Sutherland said in that case that, if the statute of Pennsylvania were produced showing the creation of the justice courts of that state, and, if the statute also “showed that the subject-matter of the suit was within the jurisdiction of a justice’s court, and the proceedings appeared from the record to have-been in conformity with the directions of the statute, then it would be entitled here [New Fork] to full faith and credit.”

Justice Gray of the Supreme Court of the United States, in the case of Hanley v. Donoghue, 116 U. S. 5, 6 Sup. Ct. 244, 29 L. Ed. 537, in speaking of the full faith and credit clause of the Constitution, as well as the act of Congress, said that, if an authenticated judgment “appears upon its face-to be a record of a court of general jurisdiction, the jurisdiction of the court over the cause and the parties is to be presumed unless disproved by extrinsic evidence or by the record itself.”

When you prove by the statute of another state the creation and jurisdiction of an inferior court, and then prove the judgment rendered therein (in this case an agreed judgment), showing affirmatively jurisdiction over the person, it is on the same plane, in so far as we are able to ascertain, as if rendered by a court of general jurisdiction. Volume 23, Cyc. p. 1593, and cases cited.- The position assumed by appellees, requiring proof that this judgment continued to be a valid judgment, and enforceable in the-state rendered, is not further incumbent upon plaintiff, after having shown the court existed and had the jurisdiction to render the particular judgment.

When a judgment is recovered in one-state,' if proof is made that it was rendered by a court having jurisdiction of the cause and of the parties, neither is the same re-examinable upon the merits. United States-Supreme Oourt case supra, 116 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 537.

The county court was wholly wrong in the rendition of its judgment in this cause, and on account of the uncontradicted nature of: tile proof, as well as the improbability of any character of defense that could be legally adduced- against it, we reverse and render the judgment, and render such judgment as the county court should have rendered,, in the cause; that is, for the amount of the foreign judgment, the interest thereon, and the certified costs in said cause.

Reversed and rendered.
      (£=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    SAN ANTONIO LIFE INS. CO. v. GRIFFITH.
    (No. 8327.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 4, 1916.
    Rehearing Denied April 8, 1916.)
    Í. Evidence <&wkey;450(6) — Parol Evidence — Explanation oe Terms — “Ambiguous.”
    Where a written contract, employing a life insurance agent, provided that the company should handle the premium notes accepted by the agent subject to the following conditions, all of which were obligations on the part of the agent, evidence was admissible to explain what was meant by the term "handle,” since the contract was ambiguous in that respect; “ambiguous” meaning doubtful and uncertain (quoting Words and Phrases, Ambiguous).
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2079; Dee. Dig. <&wkey;450(6).]
    2. Evidence <&wkey;450(l) — “Ambiguity.”
    “Ambiguity” is defined as an uncertainty 'of meaning or expression used in a written instrument ; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful import (quoting- Words and Phrases).
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2080, 2081, 2084; Dee. Dig. &wkey; 450(1).
    For other definitions, see Words and Phrases, First aud Second Series, Ambiguity.]
    3. Evidence &wkey;>451 — “Patent Ambiguity.”
    “A patent ambiguity in an instrument is an uncertainty that arises at once on the reading; * * * is one produced by the uncertainty, ■contradictoriness, or deficiency of the language of the instrument” (quoting Words and Phrases, p. 919).
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2085-2092; Dec. Dig. &wkey;451.
    For other definitions,, see Words and Phrases, First and Second Series, Patent Ambiguity.]
    4. Evidence <&wkey;215(3) — Admissions — Contract — Letters—Agents—Advances.
    A letter, written by a life insurance company to its agent, admitting that it had agreed to advance one-half of his commission on the amount represented by premium notes, is competent as an admission of the meaning of the agreement in the written contract that the company would handle the premium notes.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 756, 757; Dec. Dig. &wkey;215(3).]
    5. Evidence <&wkey;205(l) — Admission of Adverse Party — Conclusiveness.
    The introduction of such letter as an admission of an agreement to make advances did not preclude the agent from showing that the agreement was to advance the full amount of the commission, and not one-half thereof, as stated in the letter.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1029, 1043, 1044, 1046; Dec. Dig. &wkey;265(l).]
    6. Insurance <&wkey;85 — Agents — Breach of Contract by Principal — Damages—Evidence.
    In an action by a life insurance company, evidence held sufficient to sustain the court’s finding as to the amount of recovery for time lost by the company’s failure to make advances as agreed, which prevented the agent from prosecuting his work.
    [Ed. Note. — For other cases, see Insurance, Cent-Dig. § 115; Dee. Dig. &wkey;>$5.]
    7. Insurance <&wkey;85 — Agents — Breach of Contract by Principal — Damages — Evidence.
    In an action by a life insurance agent for breach of the company’s promise to make advances, testimony that the agent’s business was increased, and that he had quite a few prospects worked up, justified the court in concluding that his commissions would have been more than at the beginning of his agency.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. § 115; Dee. Dig. <§=>85J
    8. Insurance <&wkey;85 — Agents — Breach of Contract by Principal — Burden of Proof.
    In an action for breach of an insurance company’s contract to make advances to its agent, which prevented his working, the burden of proving that he could have gotten advances from some other source to prosecute his work, or could have found employment in some other business, and thereby avoided or reduced his damages, is on the defendant.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 115; Dec. Dig. <&wkey;>85.]
    9. Insurance @=384(2) — Agents—Breach of Contract by Principai^Issues.
    In an action by a life insurance agent for special damages for the company’s breach of its contract to advance to the agent, as funds with which to continue his work, the amount of his commission in premium notes taken by him, he cannot recover for the balance of commissions included in notes not paid, since the need of the funds ceased when the agent accepted the breach as terminating Ms contract and sued for damages.
    . [pd. Note. — For other cases, see Insurance, Gent. Dig. § 111; Dec. Dig. <&wkey;84(2),] .
    10. Insurance <&wkey;S5 — Agents — Breach of Contract of PrincipaiA-Damages.
    In an action for breach of an • insurance company’s contract to make advances to the agent to enable him to continue work, plaintiff could not recover for the loss of the business, given up by him to accept employment with the insurance company.
    [Ed. Note. — For other cases, see Insurance, Gent. Dig. § 115; Dee. Dig. &wkey;>85.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by W. L. Griffith against the Sap Antonio Life Insurance Company. Judgment for plaintiff for part of the amount sued for, and defendant appeals, and plaintiff files a cross-appeal.
    Modified by reducing the amount, and affirmed.
    John F. Onion, of Dallas, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellant Chauncey & Davenport, of Wichita Falls, for appellee.
   BUCK, J.

Suit was brought by W. L. Griffith, appellee, against the appellants, San Antonio Life Insurance Company and Harry L. Seay, liquidating agent of said company, for damages on account of the alleged breach of a contract by the San Antonio Life Insurance Company, claiming damages and asking for judgment against appellants in the sum of |1,021. Appellee alleged in his petition that on or about August 19, 1914, the San Antonio Life Insurance Company entered into a written contract with him, employing him as an agent of said company to solicit and write applications for life insurance in defendant company, and that plaintiff—

“was to receive compensation for services rendered and to be rendered the said defendant, in commissions hereinafter set out; that said written contract provides when plaintiff should write an application for a policy in said company, and that if said first year’s premium was not paid in cash, then said plaintiff was authorized to accept notes from the applicant for said premium on the said policy, which note or notes were to be made payable to plaintiff at San Antonio, Tex., and to be indorsed by plaintiff, and to be immediately forwarded by plaintiff to the defendant company at its home office, and which notes were not to run for a longer period than six months from date thereof; that in the event plaintiff should forward any note or notes which he might receive from applicants for policies in said company, to cover their first year premiums to said defendant, and if same were approved and accepted by the company, then it was agreed between the plaintiff and said company, in said written contract, that said defendant company would handle said note or notes so forwarded and accepted. If it should be found by the court that the word ‘handle,’ as used in said written contract of employment, is ambiguous and is uncertain in its meaning, then plaintiff says that it was then and there understood by plaintiff and said defendant company that when said defendant approved and accepted note or notes so forwarded by plaintiff, as hereinbefore alleged, then said defendant would immediately advance to plaintiff in Wichita Falls, Wichita county, such sum of money as would equal the amount of commissions to which plaintiff was entitled, as hereinafter set out in said written contract or contracts,” etc.

Plaintiff further alleged that he was to receive 75 per cent, commission on all business which he wrote for appellant company, except as to 5 policies written, upon which he was to receive 70 per cent, of the first year’s premiums. Plaintiff alleged that he had written some 14 policies for defendant company, and had taken notes in payment thereof, and forwarded the same to defendant company at its home office, and that said notes had been approved and accepted by said defendant company—

“that said defendant company complied with its said contracts, and advanced to plaintiff the sums of money to which he was entitled until on or about the 1st day of November, 1914, at' which time said defendant company then and there failed and neglected to advance to plaintiff the sums of money to which he was entitled under said contract, and that, plaintiff then and there being without any funds, and being unable to obtain any from any other source, with which to meet the necessary expense of soliciting and writing applications for insurance in said defendant company, plaintiff was then and there prevented, by the failure of the defendant company to make said advances to which he was entitled under said contracts, from soliciting and writing applications for insurance in said company from on or about November 1, 1914, to November 15, 1914, and from December 18, 1914, to December 31, 1914, and during the entire month of January, 1915, and from February 1, 1915, to February 15, 1915 — all of which facts were well known to said defendant company at that time.”

He further alleged that:

“He was earning, and Ms time was reasonably worth, the sum of 8193.25 per month, and he would have earned said amount per month during the time which he lost if the defendant company had made advancements to plaintiff as it had contracted to do.”

He further alleged that for some time prior to the execution of the contracts pleaded he had been engaged in the business of fire insurance and real estate in Wichita Falls, and that in order to accept the terms of employment with defendant company, he was forced to give up said business, and that, because of the general business depression prevailing, he was unable to sell the same for any sum of money and was forced to give said business away. He alleged that said business and office fixtures .were reasonably worth 8538, for which he sued. He further claimed damages for the 2½ months alleged to have been lost by reason of defendant’s failure to furnish money in the way of advancements, for which he asked judgment in the sum of 8483. He further alleged that defendant was due him the further sum .of 8180.51 on the first year premium notes, which were approved and accepted by the defendant company, for which he prayed judgment. A jury having been waived, the court rendered judgment for plaintiff in the several amounts hereinafter mentioned, to wit, for loss of time, 8482.50, for balance due plaintiff on first year premium notes, 8180.-51, making a total of 8663.01, and denied judgment for the loss of the business and office fixtures as claimed. Defendant appeals, and plaintiff, by cross-assignment, alleges error to the action of the court in denying his claim for damages as to his insurance and real estate business and office fixtures.

It appears that plaintiff, at the instance of defendant, went to San Antonio to discuss the matter of his engagement with said company, and explained to the president of said company that he was without funds to carry on the business, and would require some advancements to be made to him on the first year’s premium notes, which he might take. Two contracts were entered into on the same date, but, as the second is the one upon which plaintiff bases his cause of action, we will pretermit any reference to the first contract. The second one is as follows:

“We hereby agree, until further notice, to handle notes accepted by you in settlement of first year’s premiums on policies issued for your account, under the following conditions, to wit:
“All notes accepted by you must be payable at San Antonio, - Texas, on a form satisfactory to the company; must be payable to you and indorsed by you and immediately forwarded to the home office of the company; must be for the full amount of the first year premiums, and must not run for a longer period than six months immediately succeeding the date of the same. No note must be accepted by you and forwarded to the company under this agreement, until you have made a thorough examination and satisfied yourself, that the maker of the note is responsible and the note will be duly paid at maturity.
“Everything being satisfactory, when a note for the full first year premium is received by the company, and the policy has been issued and delivered by you, the net amount due by you to the company on account of the premium on the policy in accordance with the terms of your contract, will be charged to your account, such charges to bear interest at the rate of six per cent, per annum until paid.
“Any note or notes forwarded to the company to be held by the company as collateral to your account, and your account to be credited with any and all amounts collected on account of said note or notes, less any cost of collection, until a credit accrues to your said account.
“It is distinctly understood and agreed that until any and all amounts so charged, to your account shall have been fully repaid with interest, that same shall constitute a lien upon any and all marginal first year commissions, or any other allowance accruing to you whatsoever, as well as upon any and all credits accruing to your account from any source whatsoever.
“It is further agreed that any note or notes deposited by you hereunder shall not be withdrawn in whole or in part 'by you, until any amount due by you to the company shall have been paid in full; that in the event of any one of said notes not being paid at its maturity you will pay the amount due on same to this company upon demand; that any extension of time granted by this company, or its agent, on any note or notes turned over to the company hereunder shall be acceptable to you, and your in-dorsement shall remain on such note whether it is paid promptly or not, you hereby waiving protest on any of said notes; that this company shall not have any liability on account of the noncolleetion of said notes, but shall only be responsible for the proceeds of same which shall come into its hands at the home office in cash.
“It is further a part of this agreement that in the event of the termination of your contract arrangement with this Company, any balance then remaining unpaid on said account shall thereupon be immediately paid by you to the company in cash with interest, when the company will return to you any collateral notes that it may then have on hand.
“This agreement is subject to the conditions and limitations- of your contract.”

Without attempting to take up and discuss each of appellant’s 13 assignments, and the several propositions under some of them, we will proceed to consider what, in our opinion, are the vital questions involved, one of which is, to wit: Whether the term “handle,” as used in the written contract just quoted, and as applied to the notes, is ambiguous, and whether, therefore, parol evidence is admissible to explain the meaning in which said term was therein used. There is no question but that the insurance company did agree to “handle” these notes, and it is evident that in so agreeing it assumed some sort of an obligation. If what follows this promise is explanatory of the meaning of the term “handle,” and sets forth the extent of the promise, then the obligation will be limited by and construed in the light of what Is contained in the writing after the expression “under the following conditions, to wit.” But it appears that the succeeding portions of the instrument contain, in the main, an, enumeration of the stipulations made by the company as a consideration for its promise to “handle.” For instance, it is provided how the notes shall be taken, the care to be exercised by the agent in satisfying himself of' the responsibility of the makers of the notes,, how they shall be indorsed, etc. Every condition therein recited is one that places a burden on the agent, plaintiff, and a compliance by the agent with these requirements is-the consideration moving to the company, which is intended to, and does, support its. promise to “handle” the notes. Hence, we-cannot reasonably hold that the instrument itself explains what is meant by the term “handle.” We think the word “handle,” as. used in this contract, is ambiguous, and therefore parpl evidence was admissible to explain its meaning, to shed light on the sense-in which it was used and understood by the-parties to the instrument. “Ambiguous, means doubtful and uncertain.” Words and Phrases, citing Osterholm v. Boston & M. Consol. Copper & Min. Co., 40 Mont. 508, 107 Pac. 499.

Ambiguity is also defined, in the same-work, as;

“An uncertainty of meaning or expression used' in a written instrument; wanting clearness or-definiteness; difficult to comprehend or distinguish; of doubtful import” (citing Barrett v. K. & T. Coal Co., 70 Kan. 649, 79 Pac. 150; Novelty Hat Mfg. Co. v. Wiseberg, 126 Ga. 800, 55 S. E. 923; Nindle v. State Bank, 13 Neb. 245, 13 N. W. 275).

Words and Phrases, 919, further says:

“A patent ambiguity in an instrument is an, uncertainty that arises at once on a reading; * ⅜ * is one produced by the uncertainty,, contradictoriness, or deficiency of the language-of an instrument.”

Certainly no one can tell, from the writing itself, what is meant by the word “handle,”' what duty or obligation was thereby understood to be assumed - by the insurance company, unless its meaning is fixed by other-expressions in the instrument itself. Since-nowhere else in the contract does the company undertake to do anything which by a reasonable interpretation might be construed as determining the meaning of the word under discussion, recourse may be had to parol evidence to explain such meaning. Kingsbury v. Carothers, 27 S. W. 15, writ of error refused, in 93 Tex. 712, no opinion; Perry v. Smith, 34 Tex. 277; Hamman v. Keigwin, 39 Tex. 34, 45; Railway Co. v. Jones, 63. Tex. 524.

It may shed some light on the question-under discussion to refer to the following letter, written by defendant to plaintiff after-the controversy as to advancements had arisen, said letter being as follows:

“San Antonio, Texas, December 9, 1914.
“Mr. W. L. Griffith, Wichita Falls, Texas-Dear Sir: We are in receipt of your letter in, regard to advance, and beg to -call your attention to your contract, under which we agreed to. advance you 50% of your commission in notes. Dp to the present you have not turned in sufficient notes for us to send you an advance of' $200.00. Am enclosing check for $100.00, and this is slightly exceeding your contract allowance, but we want to do the ’best that we can for you, and for this reason we are going beyond what the contract calls for.
“I trust that you will succeed this month in securing enough business to cover all your indebtedness to the company in accordance with your contract. With very kindest regards, we are,
“Yours very truly,
“Robinson N. Hodge, Secretary.
“RHN — O. Inclosure.”

By the admission on the part of the company that it had. agreed in the written contract to “advance 50% of your commissions in notes,” it is evident that the word “handle” was given a meaning hy the parties to the contract not explained by the instrument itself. While the claim was made in such letter that the advancement to be made was only 50 per cent, of the commissions in notes, and while this letter was introduced by plaintiff, yet it was in the nature of an 'admission by the adverse party that there had been an agreement to make certain advancements, and plaintiff would not, by the introduction of this letter, be precluded from showing that the contract in fact was intended to provide for the advancement of ail of the agent’s commissions, nor be bound by the limitation contained in said letter. 1 Greenleaf (1892 Ed.) § 201, pp. 277, 278. The letter having been admitted, it would be for the jury to determine, from all the evidence, First, whether any advancements at all were to be made; and, second, the amount of said advancements. The plaintiff testified upon this point, in part, as follows:

“I told Mr. Hodge (president of the Insurance Company) at that time that unless he could handle my notes I could not go to work for the company. ⅜ * * The advances that I was to receive represented my commission whenever T sent it. I was to get my full commission, seventy and seventy-five per cent.”

Therefore, we conclude that the court did not err in holding and finding that the word “handle,” as used in the contract, was ambiguous and not clear as to its meaning, and in admitting parol evidence as to such meaning, and all assignments, attacking such ruling and findings by the court, are overruled.

We come next to the question, Does the evidence sustain the judgment for $482.50, for loss of time? We are of the opinion, in the condition of the record, we cannot disturb this part of the judgment for want of evidence to' support it. Plaintiff, upon this issue, testified, in part, as follows:

“There was a time that the company failed to send me these advances to which I was entitled, and they failed to send me money to which I was entitled about the 1st of November, and when I failed to get this money, I wrote them. * ⅜ * I went out to work again about the 15th of November, but did not work in the meantime. I lost all of the time between the 1st and 15th of November, and had no occupation during that time, as my time belonged to them. I also lost about one-half of December, being about the 14th to the last of December. I do not remember just the amount I had coming to me. I know it was away up towards $300, and they only sent me $100, and that barely paid my expenses. I was out at Seymour writing business, and I had a buggy and a man hired, driving me around to do business for them. When I got my check, I paid my driver and my expenses, and I had enough to go back to Wichita Falls on, but I did not have enough to go out on again. I did not have any funds to solicit business on and pay my expenses from the 14th to the last of December. ⅜ * * I received no advances from the company during the month of January, 1915. I had funds coming to me on the 1st of January, 1915, from notes that I had sent in and had been approved by the company. I had sufficient funds coming to me, as my part of the commissions, coming to me from those notes, with which to pay my expenses during the month of January.”

He further testified, that he lost the time from February 1st to 15th because of lack of funds with which to prosecute the business, and that the company owed him at that time, on notes sent in by him and accepted by the company, sufficient to pay such expenses. He further testified that there were some 50 insurance agents in Wichita Falls, and that, therefore, in order to secure any business, it was necessary for him to go away from Wichita Falls to write insurance, and that he had no funds of his own to meet expenses, and could not obtain funds from any other source; that during the time he worked for defendant company, the amount of his commissions—

“was something near $200 per month, being one hundred ninety some odd dollars per month. My business was getting better at the time I quit working for defendant. I had quite a few prospects worked up out in Baylor county, where I had been working.”

In his petition he prayed for $193.25 per month for the time lost. The judgment rendered as to this item, $482.50, is 38 cents more than 2⅛ months would amount to at $193.25 per month. The court, from the above testimony, would have been justified in concluding that for the time lost, after his business had been worked up, his commissions would have been more than at the beginning of his agency.

Nor do we think the contention can be sustained that because plaintiff was not engaged in other work during the time for which he claims damages, it should be held that the burden was on him to show that he used reasonable efforts to secure other employment, or to secure funds from some other source with which to prosecute the agency under his contract of employment. We think the burden, both as to pleading and evidence, was on defendant to show that plaintiff could have gotten funds from some other source, or could have found employment in some other business, and thereby avoided or reduced his damages. Telegraph Co. v. Sheffield, 71 Tex. 577, 10 S. W. 752, 10 Am. St. Rep. 790; 26 Cyc. 1006, and citation under footnote No. 67; Weber Gas & Gasoline Co. v. Bradford, 34 Tex. Civ. App. 543, 79 S. W. 46; Porter et al. v. Burkett et al., 65 Tex. 383; A1lgeyer et al. v. Rutherford, 45 S. W. 628; Telephone Co. v. Bross, 45 S. W. 178; Miller v. Oilmill & Mfg. Co., 166 S. W. 1182; Bost v. McCrea, 172 S. W. 561; 1 Sedgwick on Damages, § 207, p. S06.

But we now come to the question whether the judgment for the item of $180.-51, alleged to be the amount due plaintiff on the notes accepted by defendant company, can be sustained. Under his pleadings, plaintiff based his cause' of action, for special damages, for alleged breach of the contract on the part of defendant to advance him funds with which to prosecute his business as agent. He did not allege, nor was it necessary to allege under the theory of the case upon which he predicated his suit, that the notes in the custody of defendant had been paid. The evidence fails to show that any of said notes had been paid at the time of the trial, except one, as before stated. Hence, as we view it, he could not recover, after the breach had been declared on and suit entered, for the balance of his commissions, included in these notes not yet paid. The need for the advancements ceased when plaintiff accepted the breach as terminating his employment, and sued for damages. Therefore we conclude that the court erred in rendering judgment for plaintiff as to this item.

We do not think the damages claimed by plaintiff because of the loss of his insurance business, had prior to the contract with defendant, are recoverable, and we hold that the court did not err in denying recovery as to this count, and overrule appellee’s cross-assignment, directed to the action of the court in so doing.

For the reasons given, we reform the judgment of the trial court so as to exclude the item of $180.51, and, as’so'reformed, affirm the judgment for $482.50, with interest from date of judgment in the lower court. The Costs of this 'appeal will be taxed against ap-pellee.

Reformed and affirmed.
      <£=»E'or other cases see same topic and KEY-NUMBER in-all Key-Numbered Digests and Indexes