author: HUFF, C. J.

text:
    BEVERS et al. v. HUGHES et al.
    (No. 1207.)
    (Court of Civil Appeals of Texas. Amarillo.
    April 25, 1917.
    Rehearing Denied May 30, 1917.)
    1. Wateks and Water Courses &wkey;>119(l)— Surface Water — Diversion.
    By express provision of Acts 34th Leg. (1st Called Sess.) c. 7, § 1, the natural flow of surface water may not be diverted in such manner as to damage the property of another.
    [Ed. Note. — Eor other eases, see Waters and Water Courses, Cent. Dig. §§ 131, 132.]
    2. Judgment <@=>248 — Order eor Injunction —Pleading and Evidence to Support.
    An order in suit to enjoin construction of a levee, as diverting surface water, to plaintiff’s injury, permitting a different levee, without pleading or evidence to support it, is improper.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. § 434.]
    Appeal from District Court, Hall County; J. A. Nabers, Judge.
    Action by W. D. Bevers and others against J. E. Hughes and another, for injunction. Erom the judgment, plaintiffs appeal.
    Reversed and rendered.
    Elliott & Moss, of Memphis, for appellants. Spencer & Clark, of Memphis, and Fires & Diggs, of Childress, for appellees.
   HUFF, C. J.

This is an appeal from an order in chambers, entered by the judge of the Forty-Sixth judicial district, upon a petition praying for a temporary injunction, and also praying that upon final hearing the injunction he perpetuated. The court, upon the presentation of the petition, ordered the issuance of the temporary writ, but set down a day for a hearing. Upon the hearing on the petition, answer, and evidence, he modified his former order, and also entered an order or permission to build a levee at a point not proposed by the defendants, and upon which no prayer for injunction was sought in the petition. The appellants, W. D. Bevers, Tom Evans, and Geo. W. Bugbee, sought to enjoin J. E. Hughes and J. Q. Durham from constructing an embankment or levee over lands belonging to the defendants for the alleged purpose of diverting the natural flow of water from John Mann creek on and over lands belonging to the plaintiffs, the appellants herein, which they allege would, if permitted, inflict irreparable injury thereto. The allegations and the evidence show that the defendants own section 81 and the north half of section 72, and are threatening to erect and tp build a dam or embankment along the east line of their sections ; that Evans owns 200 acres out of section 72, and adjacent to and immediately south of the north one-half of the section owned by Hughes, No. 72; and that Bevers and Bugbee own section 40, which lies immediately south of 72. The appellees Hughes and Durham have in part constructed, or are threatening to construct, on their respective lands, an embankment over their land along their east line from a point upon section 81 belonging to Durham, down to the southeast corner of Hughes’ half section out of section 72. It is alleged the embankment erected, or to be erected, is to be seven feet high, and there is some evidence that it is or will be six or seven feet high. It is alleged that this embankment is and will be erected across a stream known as John Mann creek, and will divert the water from its natural course and throw it upon the lands of appellants below, Hughes’ portion of section 72. The allegations and evidence show that John Mann creek rises in Donley county, traversing a distance estimated at from seven to ten miles before reaching sections 81 and 72, and that its general course is southwest, and that it finally empties into a branch of Red river. Up to a point of between 300 or 600 yards in section 80, which is immediately adjacent to and east of the two sections, 81 and 72, the creek has well-defined banks; but at that point the evidence shows there is some kind of a fork — the banks of neither fork are shown to be well defined, if any existing at all.

Appellants contend that the stream actually follows what we may term the west fork and through a corner of Durham’s land; then onto Hughes’ land and out of it onto the land south. The evidence is rather unsatisfactory and meager as to whether this water so flowing again unites with the other branch south off there and forms part of the stream entering Red river. The appel-lees contend, and offered testimony, that the stream is what we term in tile record east or south, of Hughes’ north half of section 72, and strikes and enters the Evans land and traverses the other land in question; that only overflows from extraordinary floods pass through Durham’s and Hughes’ land, on what we may term the west stream; and that that is not the channel of the creek. The entire evidence tends to the conclusion that, at the point in section 80 where the evidence of the banks of the streams is not discernible, the waters from the upper portion of the creek spread out into a sandy flat or valley, the width of which along the line of the embankment proposed is somewhere near 1,400 yards. In times of flood and during heavy rains, the waters discharged in this valley flow over much of the valley. However, by the various witnesses it is described as flowing in streams — some saying east and some west. It is undisputed that Durham has had some sort of levee for eight or nine years, and on several occasions this has been washed out by the flood waters, and that Hughes erected a small embankment joining Durham’s, and that his embankment had been washed out; the places so washed out being 2 or 3, and one washout being described as about 30 feet, wide. The evidence shows that the water coming down onto the north line of Hughes and the south line of Durham will, by the embankment, be diverted along the east line of the appellees’ two tracts of land to Hughes’ southeast corner. It is not clear from the evidence that the stream as aontended for by appellees will be reached by an extension to the southeast corner of Hughes’ tract, and we infer that it will not be so reached, but that the water will be left to make its way across intervening land, in order to reach that channel, if there is one. The evidence, we do not think, shows a well-defined channel on either the east or west branches, but indicates that there is more of a depression at those points in a sandy valley along the alleged stream. The evidence shows that the fall of this creek or valley is 60 feet to the mile.

The parties appear, by their pleadings and evidence, to have tried to show that the respective) east and west branches are, or are not, the channels of John Mann creek — evidently upon the theory that in this state what is called the common law on this question prevails. Under the rules as to what is or is not a stream, it would be difficult to determine in this ease that there was a stream at the points in question, or, if so, which it is. Or, whether the waters therein should be treated merely as surface water, which the owner of the land, under the common-law rule, would have the right to build embankments against or obstruct, regardless of the effect it might have upon the lower land or estate. We do not deem it necessary to discuss this question, and will only refer to a few authorities on the point: Barnett v. Matagorda, 98 Tex. 355, 83 S. W. 801, 107 Am. St. Rep. 636; Gramann v. Eicholtz, 36 Tex. Civ. App. 309, 81 S. W. 756; Gross v. Lampasas, 74 Tex. 195, 11 S. W. 1086; Wilborn v. Terry, 161 S. W. 33; Cartwright v. Warren, 177 S. W. 197; Walenta v. Wolter, 186 S. W. 873; Booker v. McBride, 16 Tex. Civ. App. 348, 40 S. W. 1031; Batla v. Goodell, 53 Tex. Civ. App. 178, 115 S. W. 622; Miller v. Madera, 155 Cal. 59, 99 Pac. 502, 22 L. R. A. (N. S.) 391; 40 Cyc. 555 and 642.

The Thirty-Eourth Legislature, at the First Call Session, p. 17, has modified the rule as it existed in this state prior to that act. The act is as follows:

. “Section 1. .That it shall hereafter be unlawful for any person, firm or private corporation to divert the natural flow of the surface waters in this state or to permit a division thereof caused by him to continue after the passage of this act, or to impound such waters, or to permit the impounding thereof caused by him to continue after the passage of this act, in such a manner as to damage the property of another, by the overflow of said water so diverted or impounded, and that in all such cases the injured party shall have remedies in both law and equity, including damages occasioned thereby, provided that the passage of this act shall in no way affect the construction and maintenance of levees and other improvements for the purpose of controlling- floods, overflows and freshets in rivers, creeks and streams, nor the construction of canals for the purpose of conveying waters for irrigation; and provided further that nothing in this act shall be so construed as to authorize or give authority to persons or corporations owning or constructing canals for irrigation or other purposes, to construct or maintain any canal, lateral canal or ditch in such manner as to obstruct any river, creek, bayou, gully, * * * ditch or other well defined natural drainage.”

By this act, the diversion of surface water from its natural flow may not be done in such manner as to damage the property of another. Under this statute, if it was not the rule previous thereto, the owner of the dominant estate may not, to the injury of the subservient estate, divert the water from its course which it would have naturally followed, and discharge it through new artificial channels, or cause it to discharge upon the lower estate at a point which would not have been its natural destination. 40 Cyc. 646. The trial court at first restrained the defendants from proceeding with the erection of the embankment and from ditching. Upon the hearing, the judge, by order, set aside the former restraining order and granted a temporary restraining order against the defendant Hughes from building a levee extending south from his northeast comer further tiran 1,920 feet, from same, but permits the building of the 1,920 feet and refused the restraining order as to Durham. He permitted Hughes to build to within 720 feet of his" southeast corner and permits him from that point, if he so chooses, to build a levee due southwest to a point in his south line, 720 feet due west of his southeast corner. .From this,we think the court evident-iy found that the water, by artificial means, would be diverted from its natural course and upon the land of the plaintiffs, and, if the embankment was carried the full length of the east line to the southeast corner of Hughes, it would damage the lands of the appellants. He therefore stopped' the levee at 720 feet from that point, but, presumably to protect the lower estate, he permits in his order the erection by Hughes of a levee which neither party anticipated either by the pleadings or evidence. They neither requested this divergency as a solution of the difficulty. This part of the order is without pleading or evidence to support it. The appellants complain that it should not have been permitted. In this we think they are correct. . They should be permitted to show, if they can, the effect this new departure would have upon their land. While this order is permissive, it yet would warrant the defendant Hughes to so construct this levee under the sanction and by direction of the judge, without an opportunity being offered the appellants to be heard on the question. This part of the court’s order evidences that he regarded the levee, if extended as contemplated by the appellees, would be a damage to the lands of the appellants, and he therefore sought to lessen such damages by making an angle at 720 feet from a point north of the southeast corner of Hughes’ land. This, we think, ought not to be permitted without some pleading and evidence, or upon a full investigation had upon that point. It appears the court concluded there should be some restraint, and the relief granted could not under the pleadings, we do not think, be administered; in fact, appellants could not have required Hughes to erect the levee as permitted by the court. If such a levee would be a relief to the lands of the appellants, they should be in a position to enforce it. The order should not leave its enforcement to the option of Hughes. It seems to us on the order of the court he concluded that the appellants were entitled to some relief. We believe, therefore, a temporary restraining order should be granted, restraining both Hughes and Durham from further building the levee on their respective lands or ditching the same along the line, so as to carry the water onto lands of appellants. We think there was no error upon the part of the trial court in refusing the mandatory writ upon the temporary or preliminary hearing.

It will be the order of this court that the judgment above entered upon hearing before the judge be set aside, and that the restraining order as prayed for and granted by the judge, upon the petition, be continued until a hearing and trial of this cause upon its merits be had at a regular term of court. It will be the order of this court that a bond, conditioned as required by law, in the sum of ?1,000, be executed by the appellants, with two or more good and sufficient sureties thereon, to be approved by the clerk of the district court of Hall county.

The judgment of the court will be reversed and rendered.
      iSccoFor other cases see same topic and KEY-NUHL'ER. in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HIGHTOWER, C. J.

license: Public Domain

text:
    HARDIN v. CONTINENTAL CASUALTY CO.
    (No. 213.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 24, 1917.
    Rehearing Denied June 13, 1917.)
    1. Insueance <&wkey;065(5) — Accident Insurance — Evidence—Admission.
    In an action on an accident insurance policy, evidence held to sustain a finding that plaintiff’s hand was not completely severed at the wrist within the meaning of a provision of the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1719, 1721, 1722.]
    2. Insurance <&wkey;146(l) — Accident Insurance — Policy—Construction.
    A provision of an accident policy insuring against the loss of a hand by complete severance at or above the wrist is not uncertain or ambiguous.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 292, 296, 297.]
    3. Insurance <&wkey;146(3) — Accident Insurance — Policy—Instruction.
    As policies of accident insurance are prepared by insurance companies for ready use and contain much printed matter and many provisions modifying one another, the meaning, of which cannot be readily understood by the average person purchasing such policies, a policy of this character should be strictly construed against the company issuing it and construed in favor of the insured.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 295.]
    4. Api-eal and Error <&wkey;1010(1) — Review-Findings.
    A finding of the trial court will be conclusive upon appeal, even if the appellate court should be of the opinion that the trial court did not find in accordance with the preponderance of the evidence adduced.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3079-3981, 4024.]
    Appeal from District Court, Hardin County; L. B. Hightower, Sr., Judge. •
    Action by William H. Hardin against the Continental Casualty Company. Judgment for plaintiff, but denying him recovery on his first cause of action, and he appeals.
    Affirmed.
    William Glover, of Temple, and Chas. L. Black, of Austin, for appellant. F. J. & C. T. Duff, of Beaumont, for appellee.
   HIGHTOWER, C. J.

This suit was filed by the appellant, William H. Hardin, against the appellee, the Continental Casualty Company, a corporation doing business in this state and engaged in a general accident and life insurance business. Appellant alleged that the appellee had issued to him, and that he was the holder of a certain policy of accident insurance, whereby the appellee insured him against the loss, by reason of the happening of an external, violent, and purely accidental event, of either of his hands in the principal sum of $1,000, and further bound itself to pay him $15 as a fee for any necessary surgical operation in the amputation of a hand; and further alleged that on or about the 1st day of January, 1916, appellant lost his left hand, by a complete severance at the wrist by the happening of an external, violent, and purely accidental event, solely and independently of all other causes, and that it became necessary to amputate his hand at the wrist because of such injury, and that same was amputated, and that, by reason of said facts, appellee became liable to pay appellant the sum of $1,015. Appellant further alleged that he had duly demanded the payment of said sum, and that appellee had failed and refused to pay the same for more than 30 days after such demand, and before filing of suit, and therefore appellee became liable to pay him, as holder of such policy, in addition to said amount, 12 per cent, damages on the same, together with a reasonably attorney’s fee, which he alleged to be $500. Appellant further alleged, in the alternative, that if, under the policy, the court should hold that he was not entitled to recover on account of the loss of his hand, then he be awarded recovery under the provisions of the policy - for 15 weeks’ loss of time, at $15 per week, together with 12 per cent, damages thereon, and a reasonable attorney’s fee. Ap-pellee, defendant below, filed its answer, interposing general and special demurrers, the disposition of which is immaterial here, and also by general denial, and further specially answered, admitting that appellant was injured under the terms and conditions named in the policy, as set out in his petition, and further alleged that he was entitled to recover $15 per week for six weeks’ loss of time, under the provisions of said policy, and that appellee had tendered him said amount, and again tendered the same by this pleading, and praying to be discharged with its costs. Upon trial before the court without a jury, judgment was rendered in favor of appellant, awarding him $15 per week for eight weeks’ total loss of time, $15 for surgical operation, and $25 as attorney’s fee, making a total of $160. The court further denied appellant recovery on his first cause of action set up in his petition, whereby he sought to recover the $1,000 for loss of his hand and 12 per cent, damages and attorney’s fee on account of loss of said hand, and held that appellant was not entitled to recover as for the loss of his hand under the provision of said policy, and as to that cause of action found in favor of appellee. The judgment of the court in denying appellant recovery on his first cause of action, as claimed, was duly excepted to, and appeal therefrom duly perfected to this court.

The record discloses that appellee did issue to appellant a policy of accident insurance, whereby appellee insured appellant against the loss, by accident, of one hand, in the principal sum of $1,000, and promised to pay an operation fee of $15, if an injury covered by the policy should necessitate the amputation of a hand. Under part 3 of the policy, it is provided that, if injury did not result in the loss of a hand, the company would pay for loss of time a weekly indemnity of $15 during the period appellant should be disabled and under treatment of a physician or surgeon. The loss, as used with reference to hand or foot, is defined by the policy to be a complete severance at or above the wrist or ankle.

It was proved upon the trial that the appellant’s hand was amputated, so that all the phalanges or finger bones were gone, except the proximal one-half of the fii'st phalanx of the thumb, all of the fifth metacarpal bone is gone, all of the second, third, and fourth metacarpal bones are gone, except the proximal heads of same, and that there remain of the hand the proximal heads of the second, third, and fourth metacarpals, the proximal half of the first phalanx of the thumb, all of the first metacarpal, and all of the rest of the bones of the hand. It was agreed upon the trial of the case between the parties that the human hand is composed of: Scaphoid, semilunar, cuneiform, pisiform, trapezium, • trapezoides, os magnum, and the unciform bones and five metacarpal bones and fourteen phalanges.

The trial court filed his findings of fact and conclusions of law, which were as follows:

“Findings of Fact.
“I find that the plaintiff was insured in the-Continental Casualty Company by policy No. 2950010 on the date of the alleged injury, a correct copy of which is set out in the plaintiff’s first amended petition, to wit, January 1, 1916.
“I find that the plaintiff was, on the 1st day of' January, 1916, injured by the happening of an. external violent and purely accidental event solely and independent of all other causes, and that on same date a surgical operation became necessary because of such injury, and that a legally qualified physician and surgeon did on said date, to wit, January 1, 1916, perform a surgical operation on plaintiff’s left hand, and removed all the phalanx or finger bones except a portion, of the first or upper phalanx of the thumb, all the metacarpal bones except the proximal heads o.f the second, third and fourth metacarpal bones and the metacarpal bones of the thumb.. None of the carpal bones of the hand were removed. I find that by reason of such operation and injury the plaintiff was on the 1st day of' January, 1916, and continuously thereafter, wholly disabled from performing each and every duty pertaining to his occupation for the consecutive period of eight weeks.
“I find that plaintiff complied with the terms-of the policy under which he was insured, relative to giving the defendant company notice of' his injury. I further find in this connection that the plaintiff did not make demand upon the defendant company for the principal sum named in the policy, to wit, $1,015, until the-25th day of February, A. D. 1916. I further-find that after demand was made for the principal sum named in said policy, to wit, $1,015,. that more than 30 days elapsed after such demand before, this suit was filed.
“I find that on April 4, 1916, the defendant: company tendered to the plaintiff weekly indemnity for six weeks and one day and $15 surgical fee amounting to a total of $105, and that plaintiff refused to accept such tender in settlement of his claim under the policy.
“I find that the policy carried by plaintiff provided for a principal sum of $1,000 and a weekly indemnity of $15 and a surgical fee of $15 for amputation of a hand.
“I further find by the terms of the policy that the principal sum of $1,000 was only to be paid for the loss of either hand, and that, by the terms of the policy, the loss of a hand means a complete severance of the hand at or above the wrist.
“I find that no portion or part of plaintiff’s hand was completely severed at or above the wrist, but in this connection find that all the phalanx or finger bones of the second, third, fourth, and fifth fingers were completely severed; that the second joint or section of the thumb was completely severed; that a portion of the first section of the thumb was severed. I find that the fifth metacarpal bone was completely severed in the joint or at its articulation with the carpal hones. I find that the second, third, and fourth metacarpal bones were removed just below the joints or articulation of the same with the carpal bones, and I here refer to the photograph and drawings in the statement of facts to show the exact point of severance.
“Conclusions of Law.
“I conclude as a matter of law the facts, qs above found by me, that the plaintiff was not entitled to recover the principal sum for loss of a hand by complete severance at or above the wrist, but that he is entitled to recover the weekly indemnity named in the policy for a period of eight weeks; that being the time shown by the evidence that the plaintiff was, after the accident, continuously under the treatment of a legally qualified physician or surgeon by reason of such injury.
“I further conclude that the language used in the provision of the policy relative to the loss of a hand is not uncertain or ambiguous, and that it plainly states that the principal sum is not to be paid for the loss of tie use of a hand, but for the loss of a hand by a complete severance at or above the wrist.
“I am also of the opinion that the defendant, having failed to tender the full amount due for weekly indemnity within the proper time, and having failed to tender it after suit was brought, it should be taxed with the costs of this court and a reasonable attorney’s fee of $25.”

Appellant presents in his brief seven assignments of error upon which he seeks a reversal of the trial court’s judgment, all of which assignments, as we understand them, raise, substantially,- the same question. By these assignments, appellant challenges the correctness of the trial court’s judgment in refusing to find and hold that appellant was entitled to recover on his first cause of action set out in his petition; that is to say, he claims that the court should have rendered judgment in his favor for the principal sum of $1,000, for the complete severance of his left hand at the wrist, as provided for in said policy, and for $15 for surgical operation performed on his hand, and for 12 per cent, as damages for failure to pay that sum after due notice to appellee, and demand therefor, and also the further sum of $250 as a reasonable attorney’s fee for bringing this suit.

In line with these assignments - of error. which we will treat as virtually the same, and as being one, it is contended by appellant that the undisputed evidence, and, if not the undisputed evidence, then the preponderance of the evidence adduced on the trial, showed that his' left hand was completely severed at the wrist, in contemplation of the meaning of the policy above mentioned, and that therefore the court erred in his findings of fact in not so finding and holding, and in not rendering judgment in favor of appellant for the sum of $1,000, in accordance with thei terms of the policy, and also for the $15 operation fee, and $250 as a reasonable attorney’s fee.

We have very carefully gone over the entire evidence as contained in the statement of facts, and we have reached the conclusion that the court’s finding of fact, to the effect that appellant’s hand was not completely severed at the wrist, in contemplation of the provision of the policy, has sufficient support in the evidence to sustain such finding, and we therefore conclude that such finding of fact on the part of the trial court must be sustained. It certainly cannot be successfully contended that the court’s finding of fact on this point is against the undisputed evidence in the record. Appellant has filed an exhaustive brief in this case, and cites many authorities, which hold, in substance, that a policy of insurance, of the character in question, should be liberally construed in favor of the holder of the policy, and that where such policy is of doubtful import or meaning, or where there is any ambiguity, or where the same is susceptible of two constructions, one of which would permit recovery by the holder, and the other would not, then such policy should always receive that construction most favorable to the holder, and recovery should be permitted him. With this contention, as a legal proposition, this court heartily agrees, because we think that the rule contended for is a most reasonable and just one. Policies of this character, as is well known, are prepared by insurance companies for ready use, and are usually lengthy and contain much printed matter, and many clauses and provisions modifying and qualifying one another, the meaning and effect of which cannot be readily understood by the average person purchasing such policies, and therefore it is but reasonable and just that such policies should be most strictly construed against the company issuing same; and in this case, if this court had any reasonable doubt of the correctness of the trial court’s judgment construing the policy in question, it would feel inclined to reverse the judgment. But, after careful consideration of the entire evidence, we are of opinion that it is shown by at least a preponderance 'of the evidence that appellant’s hand was not completely severed “at the wrist,” as provided in this policy, and in accordance with the clear meaning of the same, but, on the contrary, we think a preponderance of the evidence shows that appellant’s hand, or such part of same as was amputated, was not severed at the wrist, in contemplation of this policy, even if we apply the most liberal rule to its construction. Bigham v. Clubb, 42 Tex. Civ. App. 312, 95 S. W. 675. It is certainly contemplated by the terms of this policy that the hand must be severed, and not only a/ portion, or a larger portion of the hand, andj that such severance must be complete and take place at the wrist. But in this case th<| evidence shows that not all of the hand was-? severed, much less does it show that the en*tire hand was severed at the wrist. !

The state of the evidence on this poinj; is such that the finding of the trial court; would be conclusive on this court, even if wé'^ should be of the opinion that the court dice not find in accordance with a preponderance of the evidence adduced. Best v. Kirkendall, 107 S. W. 932; Thigpen v. Russell (Mo. App.) 118 S. W. 1080. Innumerable authorities on this point might be cited, but the rule is too well understood to require further comment.

We overrule these assignments without further comment, and hold that the trial court’s judgment must be affirmed, and it is so ordered.
      <S=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    WALTER CONNALLY & CO. v. HOPKINS et al.
    (No. 1795.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 18, 1917.
    Rehearing Denied May 24, 1917.)
    1. Insurance <&wkey;580(2) — Proceeds of Policy — Right of Lien Claimants.
    In absence of stipulation in policy a .contract of fire insurance is personal to the insured, and does not indemnify the holder of a lien on the property insured.
    [Eld. Note. — For other cases, see Insurance, Cent. Dig. § 1441.]
    2. Insurance <&wkey;580(2) — Right to Proceeds —Mortgagee’s Lien.
    As a general rule, if the mortgagor is charged with the duty of taking out insurance for the benefit of the mortgagee, the mortgagee will have an equitable lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee’s interest in the property destroyed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1441.]
    3. Chattel Mortgages <&wkey;164r — Insurance roe Benefit oe Mortgagee — “Request.”
    ■ The action of the sellers of machinery in asking the buyer if he had insured the machinery, in accordance with requirements of a chattel mortgage, was equivalent to a request that the machinery be insured for the benefit of the sellers, and the buyer’s reply in the affirmative was an assurance that he had so insured it.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. §§ 294-296.
    For other definitions, see Words and Phrases, First and Second Series, Request.]
    4. Estoppel &wkey;>78(2) — Grounds—Equitable Lien.
    That a buyer of machinery, when he procured insurance, did not know of a stipulation for insurance in favor of the sellers, in a chattel mortgage given by the buyer for the purchase money, cannot be urged by a third lien-holder, claiming the proceeds of the insurance as against the sellers, as a reason why the ordinary rule of estoppel by contract does not apply.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. § 205.]
    £. Insurance <&wkey;580(2) — Right to Proceeds ,'!_^-Lien Claimants.
    Where sellers of machinery stipulated in the contract of sale that it should remain personal property, and the purchase-money chattel mortgage taken in part payment contained the same provision, and a provision that the property should be insured for the benefit of the sellers, and in case of fire all other insurance carried against the property should be assigned and transferred to the sellers until they should be paid in full, the sellers had a lien on the proceeds of the policy superior to one holding a vendor’s lien on the land upon which the machinery was. situated, and who had an assignment which w.a.s indorsed on the policy after a loss occurred, j
    \ [Ed. 'Note. — For other cases, see Insurance, Cent. Dig. § 1441.]
    6. Insurance <&wkey;580(2) — Right to Proceeds —Evidence—Sufficiency.
    A vendor’s lien claimant has no claim to the part of the insurance in controversy because of a stipulation in a trust deed that the grantee would insure the property conveyed and transfer the insurance to the trustee, since that part of tlie insurance in controversy is on property acquired after the execution of such trust deed.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1441.]
    7. Insurance <&wkey;665(l) — Action on Policy— Evidence — Sufficiency.
    In an action involving the right to proceeds of insurance policy covering machinery, as between the sellers of machinery who claimed an equitable lien on such proceeds by reason of a chattel mortgage and stipulations therein, and a vendor’s lien claimant in whose favor a trust deed to the property upon which the machinery was situated had been executed, evidence held not to sustain a finding that the trustee, who-was also the agent of the insurance company, after issuing tlie policy in question, instead of delivering it, retained possession in his capacity as trustee until after the fire occurred.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1707.]
    8. Insurance <S&wkey;594 — Assignment of Policy-Innocent Purchaser.
    Where the consideration for the assignment of proceeds of an insurance policy was the then existing indebtedness of the assignor to the assignee, the assignee is not entitled to-protection as an innocent purchaser of the claim evidenced by the policy.
    [Eld. Note. — -F'or other cases, see Insurance, Cent. Dig. §§ 1455-145S, 1483, 1485.]
    9. Insurance <&wkey;5S0(2) — Proceeds — Construction of Contract.
    The effect of stipulations in a contract and chattel mortgage requiring the chattel mortgagor to insure the property in favor of the mortgagee was to create a lien in favor of the mortgagee on the proceeds of the policy, and not to transfer those proceeds to the mortgagee.
    [Ed. Note. — For other cases, see Insurance, Cent Dig. § 1441.]
    10. Election of Remedies i&wkey;3(l) — Consistent Remedial Rights.
    If a chattel mortgagee had a lien on the proceeds of an insurance policy by virtue of stipulations in the contract and mortgage, and. also a remedy by garnishment, the doctrine of election of remedies did not apply, and the remedy because of the stipulations was not waived when the chattel mortgagee sued out a writ of garnishment against the insurance company, since there is no inconsistency between different legal remedial rights, all of which are based on claim of title in plaintiff, or all of which are based on affirmance of title in defendant.
    [Ed. Note. — For other cases, see Election of Remedies, Cent. Dig. § 3.]
    11. GARNISHMENT <&wkey;26 — PROCEEDS OF POLICY— On Homestead.
    As the machinery became realty and the property was a homestead; the proceeds of the policy were not subject to garnishment during the six months following the time when the mortgagor had a right to demand it of the insurance company.
    [Ed. Note. — For other cases, see Garnishment, Cent. Dig. § 43.]
    12. Insurance i&wkey;580(2) — Proceeds of Policy-Garnishment by Lien Claimant.
    If the proceeds of the policy had not been exempt from garnishment, the service of the writ on the insurance company would have conferred on the chattel mortgagee the right to such proceeds to the extent of their lien superior to the right of the holder of the vendor’s lien.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1441.]
    Appeal from District Court, Hunt County; Wm, Pierson, Judge.
    Action by F. N. Hopkins against Walter Connally & Co. and others. From the judgment, Walter Connally & Co. appeals.
    Reversed and remanded, with instructions.
    The suit was commenced by appellee Hopkins against appellees Wilson and the Fixe Association of Philadelphia and appellant Walter Connally & Co. by a petition filed December 23, 1915. Its principal purpose was to subject to the payment of indebtedness of Wilson to Hopkins a sum due by the insurance company on a policy of fire insurance issued by it on a gin plant, consisting, among other things, of machinery sold on credit by Hopkins to Wilson and one Patten and of other machinery sold on credit by Con-nally & Co. to said Wilson and Patten. The trial was to the court with a jury. It appears from his findings that the facts were as follows: August 9, 1913, Hopkins,' by a warranty deed, conveyed certain land in Wood county and a gin plant situated thereon to J. F. Wilson and W. H. Patten, receiving as part payment therefor Wilson and Patten’s six notes, five for $1,500 each, and one for $2,000, secured by a vendor’s lien expressly retained in both the deed and notes. August 13, 1913, Wilson and Patten, to further secure the notes, conveyed the property to D. S. Armstrong as trustee. In the instrument evidencing this conveyance Wilson and Patten agreed to—
    “keep the buildings and improvements on the above-described premises insured against loss by fire in some solvent insurance company or companies to the extent insurance can be obtained thereon, and will transfer the insurance or an amount thereof equal to the amount due on said notes and deliver the policies to said D. S. Armstrong, trustee, with loss, if any, payable to said trustee as his interests may appear.”
    January 2, 1914, Wilson and Patten entered into a contract with Walter Connally & Co. by the terms of which they agreed to purchase certain gin machinery of said Connally & Co., and in accordance with which they paid to Connally & Co. $1,000 in cash, delivered to Connally & Co. old machinery of a similar kind which had formed a part of the gin plant conveyed to them by Hopkins at a valuation of $1,100, and made and' delivered to Connally & Co. their four promissory notes, two for $598 each, payable November 1,1914 and 1915, respectively, and two for $000 each, payable December 1, 1914, 'and December 1, 1915, respectively. In the instrument evidencing the contract of sale Wilson and Patten agreed to keep the property they purchased of Connally & Co', fully insured against fire until the notes they were to execute were-paid, the loss, if any, to be payable to Connally & Co. as their interest appeared, and further agreed to deliver the policy evidencing: such insurance to Connally & Co. at Tyler.. In the contract was a stipulation that a failure or refusal to insure the property should, operate to authorize Connally & Co. to declare due and payable at Tyler the part of the purchase price of the machinery evidenced by the notes to be executed by Wilson and Patten, and a stipulation that the machinery “should not become realty or a fixture to-realty, but should remain personal, and the title to the same should remain in Walter-Connally ■& Co. until paid for.” At the time-Wilson and Patten entered into the contract with Connally & Co., and. before the machinery sold to the former was delivered to them,, an agent of the latter in Tyler telephoned Hopkins in Alba, and advised him (Hopkins) that Connally & Co. were contracting with Wilson and Patten to sell them the machinery, and to accept as part payment by Wilsom and Patten therefor machinery at a valuation of $1,100 then in the plant Hopkins had sold' them. Hopkins, in the conversation over the-telephone, consented to the arrangement, and agreed that the old machinery in the plant he-ha'd sold to Wilson and Patten “might be removed and taken for such purpose.” Connally at that time “knew of Hopkins’ deed of trust and vendor’s lien notes,” but the evidence-failed to show that Hopkins knew anything-about the terms of the contract between Wilson and Patten and Connally & Co. for the sale of the machinery; and he did not know of the provision in that contract—
    “in reference to keeping said property insured for the benefit of Walter Connally & Co., nor-of the provision making the property so sold by Walter Connally & Co. personal property, nor of the fact that Walter Connally & Co. were retaining a mortgage lien thereon or title thereto until paid for.”
    Connally & Co. knew at the time they contracted to sell the machinery to Wilson and Patten that it was “to be placed in the gim plant” they purchased of Hopkins “to replace the old machinery they were to receive in part payment”; and they also knew—
    “that it was necessary to have the machinery so placed in order to make it a complete plant to enable the owners thereof to operate the same, and the said new machinery was to be connected with said gin plant and connected with the soil in such ways as to injure the real estate if the same should be removed, and I find,” the court added, “that said machinery was so connected with the plant and with said real estate.”
    January 27, 1914, Patten sold and conveyed his interest in the property he and Wilson had purchased of Hopkins and in the machinery they had; purchased of Connally & Co. to Wilson, who assumed the payment of the indebtedness against same. March 13, 1914, to secure the notes executed by him and Patten, Wilson made and delivered to Connally & Co. a “chattel mortgage covering the property” Connally & Co. had sold to him and Patten. This mortgage was filed for registration in Wood county on March 24, 1914. Among other things, it contained recitals and stipulations as follows:
    “Said machinery is located and to be located at Alba, in Wood county, Texas, and to remain personalty however and wheresoever located; and it is expressly agreed and understood that future purchases by me of machinery, extras, fittings, attachments and goods from Walter Connally & Co. are hypothecated and mortgaged to said Walter Connally & Co. for the purchase money thereof and for this debt. And it is further expressly agreed and understood that the above-described machinery is hereby hypothe-cated and mortgaged to said Walter Connally & Co. to secure such other sums of money as I, or we, may now be due and owing, or that may hereafter become due to said Walter Connally & Oo. by the purchase of machinery, supplies or otherwise. I also agree immediately upon the request of Walter Connally & Oo. to insure the machinery above described for an amount equal to the indebtedness due to Walter Connally & Co., the loss, if any, payable to said Walter Connally & Co. as their interest may appear; and in case of fire all other insurance carried by me against said property is hereby assigned, set over and transferred to Walter Connally & Co. until they are paid in full.”
    Except so far as they might be charged therewith by reason of its registration, neither Hopkins nor the insurance company had any notice of the making of the mortgage or its contents. Both the contract between Wilson and Patten and Connally & Co. and the mortgage from Wilson to Connally & Co. were on printed forms used 'by said company. “Wilson, while charged in law with the contents of said instruments,” the court said, “never in fact read the same, and never had any actual notice of the fact that either of them contained the provisions aforesaid (referring to the provisions in said instruments specified and set out in the foregoing statement), until after the fire in question occurred; that there was no agreement between defendant Walter Connally & Co. and defendant Wilson by which said pi’operty was to be insured for the benefit of said company, except in so far as same may exist on account of said provisions; that the matter was never 'discussed or agreed upon, and that said company never requested Wilson to have said property insured for their benefit, although they did inquire of him on one occasion whether or not he had the property insured and were informed that it was insured.”
    June 2, 1915, the Fire Association of Philadelphia, by its agent said D. S. Armstrong, at the instance of Wilson, issued its policy insuring the gin plant against fire until June 2, 1916, in the sum of $4,000. By the terms of the policy $1,000 of the amount thereof covered the gin building and boiler room's, $2,000 “fixed and movable machinery of all kinds,” and $1,000 the engine and boilers, including “foundation and settings, smokestack, heater and pumps.” From the time they purchased the property of Hopkins, Wilson and Patten kept it insured. The policy above referred to as having been issued June 2, 1915, was — •
    “in the same language, and contained the same description of the property, that had been used and contained in the several policies previously issued on said property. The amount of insurance was the same in each policy.”
    When Armstrong, as agent of the insurance company mentioned, issued the policy, he retained the possession thereof in his capacity as trustee in the deed from Wilson and Patten, hereinbefore referred to. It was in his possession as such trustee November 10, 1915, when the engine and boilers and their foundations and settings were damaged and the other property covered by the policy was destroyed by lire, November 12, 1915. Connally & Co. requested Wilson to transfer his claim under the policy issued June 2, 1915, to them. He refused to do so. On the same day, to wit, said November 12, 1915, Connally & Co. commenced a suit against Wilson and Patten in the district court of Smith county on the notes they had given for part of the purchase price of the machinery Con-nally & Oo. sold to them, and on that day caused a writ of garnishment to be issued against and served upon said Fire Association of Philadelphia. The suit resulting in the judgment from which this appeal is prosecuted was commenced by Hopkins in Hunt county by a petition filed December 23, 1915. After Connally & Co. were served with a citation notifying them of the commencement of the suit by Hopkins in Hunt county, they filed a petition in their garnishment suit against the insurance company their pending in Smith county, to make Hopkins and Wilson parties thereto, alleging that the indebtedness of the insurance company on account of the policy was to Wilson, and praying that Hopkins and Wilson he required to answer in the garnishment suit. Because he was thus made a party to Connally & Co.’s garnishment suit against the insurance company in Smith county, it was necessary for Hopkins to employ lawyers to represent him and to go in person to Smith county in February, 1916, to be present at the trial thereof in the dis: trict court of that county, resulting in expense to him of more than $200. February S, 1916, judgment was rendered in the suit in Smith county commenced by Connally & Co. against Wilson and Patten in favor of the former against the latter for $2,479, and a foreclosure of the lien of the chattel mortgage eseeuted t>y Wilson on the machinery sold to him and Patten by Connally & Co. At the time the judgment appealed from was rendered the judgment of the district court of Smith county in favor of Connally & Co. against Wilson and Patten, except $275 thereof, was unsatisfied. November 13, 1915, Wilson was, and at the time of the trial of this cause was still, indebted to Hopkins on account of the vendor’s lien notes executed by him and Patten in the sum of more than $5,000. On the day last mentioned said Wilson, “in recognition of the provisions of the deed of trust” to Armstrong, and to reduce his said indebtedness to Hopkins, by writing on the policy transferred his interest in it and claim it evidenced against the insurance company on account of damage to and destruction by fire of property it covered to Hopkins. In an adjustment of the loss by the fire it was agreed that $3,750 would cover same. The land and gin plant conveyed 'by Hopkins to Wilson and Patten was Wilson’s “business homestead” at the time the fire occurred, and had been ever since Hopkins conveyed the property to him and Patten. “The property destroyed by fire,” quoting the language of the court, “including the machinery sold by Connally & Co. as aforesaid and annexed to said plant, was, at least so far as the interest” of Hopkins “herein is concerned, and as to the insurance company, real estate and a part of the homestead aforesaid.” On the facts found by him, the court concluded as a matter of law that Hopkins was entitled to recover of the insurance company the $3,750 due by it on the insurance-policy, and that Connally & Co. were not entitled to recover any part of same or to any relief against the other parties. The court further concluded that the insurance company was entitled to an injunction against Connally & Co. restraining them from further prosecuting their garnishment suit against it pending in the Smith county district court. Judgment in accordance with those conclusions was rendered by the court, and Connally & Co. thereupon prosecute this appeal.
    ' R. L. Porter, of Greenville, and Price & Beaird, of Tyler, for appellant. W. W. Campbell, of Alba, and Clark & Leddy, of Green-ville, for appellees.
   WILLSON, C. J.

(after stating the case as above). The controversy between Hopkins on the one side and Connally & Co. on the other side was as to which of them had the superior right to the part of the-proceeds of the policy representing insurance on the machinery the latter sold to Wilson and Patten. In determining that controversy it was immaterial whether the lien on the machinery claimed by Hopkins was superior to that claimed by Connally & Co. or not; for a lien on the machinery of itself conferred no right on the holder thereof to the proceeds of the policy. A contract of fire insurance is personal to the insured, is for his indemnity, and not for the indemnity of the holder of a lien on the property insured. Cameron v. Fay, 55 Tex. 59; Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479; Gassaway v. Browning, 175 S. W. 481; 1 Cooley’s Briefs on Law of Insurance, 82, 83 ; 2 Id. 1064, 1065 ; 4 Id. 3699. Therefore whether the claim of Hopkins to said proceeds was superior to that of Connally & Co. or not depended upon whether he had acquired a right thereto by contract with the insured (Wilson), and, if he had, whether the right he so acquired was supe-riorto the right thereto which Connally & Co. had acquired (1) by contract with said Wilson, and. (2) by the garnishment proceedings against the insurance company in their suit against Wilson and Patten in the district court of Smith county.

In determining the controversy we will first consider the claim- of Connally & Co., in so far as it was based on (1) the contract covering the sale by them of the machinery to Wilson and Patten, and (2) the mortgage to them by Wilson and Patten would keep the machinery fully insured against fire, the loss, if any, payable to them (Connally & Co.) as their interest appeared, until notes representing purchase money thereof were paid, and of the stipulation in the mortgage that Wilson would, upon their request, insure the machinery for an amount equal to his indebtedness to them, the loss, if any, payable to them as their interest appeared, was to entitle them to said part of the proceeds of the policy. That the stipulations had the effect claimed, unless the contentions made by Hopkins presently to be noticed should be sustained, is well settled by the authorities. 4 Cooley’s Briefs on Law of Insurance, 3703 et seq. and authorities there cited; Wheeler v. Ins. Co., 101 U. S. 439, 25 L. Ed. 1056. “An agreement,” said Mr. Cooley,

“between the mortgagor and mortgagee, by which the mortgagor is charged with the duty of taking out insurance for the benefit of the mortgagee, will charge the proceeds of any insurance taken out by the mortgagor with a lien in favor of the mortgagee.”

And in the Wheeler Case the Supreme Court said:

“It is settled by many decisions in this country that if the mortgagor is bound, by covenant or otherwise, to insure the mortgaged premises for the better security of the mortgagee, the latter will have an equitable lien upon the money due on a policy taken out by the mortgagor to the extent of the mortgagee’s interest in the property destroyed.”

One of the contentions of Hopkins, referred to above, is that the contract of sale and the mortgage should be treated as one' instrument, and that, construed 'as parts of one and the same instrument, the stipulations did not bind Wilson to insure the machinery for Connally & Co.’s benefit unless the latter requested him to do so. Hopkins refers to the finding of the court that Con-nally & Co. did not request Wilson to so insure the property, and insists it therefore appeared that they did! not acquire a right to the insurance on the machinery by reason of the stipulations. But, while the court found that Connally & Co. “never requested Wilson to have said property insured for their benefit,” he also found that “they [Connally & Co.] did inquire of him [Wilson] on one occasion whether or not he had the property insured, and were informed that it was insured.” If the two instruments should be treated as one, and the stipulations as meaning what Hopkins contends they meant, we think the facts found by the court showed a request within such meaning. The conclusion of the court from the facts he found, that Connally & Co. did not request Wilson to insure the property for their benefit, was not, we think, warranted. Under the circumstances of the case, we think Connally & Co.’s asking Wilson if he had insured the machinery should have been construed as a request to insure it for their benefit as he had agreed to, and Wilson’s reply as an assurance that he had so insured it.

The other contention made by Hopkins is that the stipulations did not create an equitable lien in favor of Connally & Co. because it appeared, as found by the court, that Wilson did not know when he procured the insurance that the contract and mortgage contained such stipulations. As supporting this contention, Hopkins cited Dunlop v. Avery, 89 N. Y. 592, and Stearns v. Ins. Co., 124 Mass. 61, 26 Am. Rep. 647. We regard the contention as unsound, and do not think the cases cited, when their facts are considered, support it. No reason appears in the record before us why Wilson, having executed the contract and mortgage, should be heard to deny knowledge of stipulations they contained as a basis for relief against the effect of such stipulations.

It follows from what has been said that we are of the opinion Connally & Co., by virtue of the stipulations referred to, had a lien on the part of the proceeds of the policy which represented insurance on the machinery they sold to Wilson and Patton.

The right of Hopkins to the part of the proceeds in question must be referred, we think, entirely to the assignment to him indorsed by Wilson on the policy November 13,1915, after the fire occurred. It cannot be referred to the stipulation in the trust deed to Armstrong that Wilson and Patten would insure the property he (Hopkins) had conveyed to them and transfer the insurance to the trustee, Armstrong, with loss, if any, payable to him as his interest appeared, because the part of the insurance in controversy was not insurance on that property, but was insurance on property Connally & Co. had conveyed to Wilson and Patten. 4 Cooley’s Briefs on Law of Insurance, 3702, and authorities there cited. Nor can a right in Hopkins be referred to Armstrong’s possession of the policy before and at the time the fire occurred. The claim that such possession conferred such a right on Hopkins is predicated upon the finding by the court that Armstrong, after issuing the policy (to Wilson) as agent of the insurance company, retained possession thereof in his capacity as trustee until after the fire occurred. The finding is attacked by Connally & Co. on the ground that there was no evidence to support it. We think there was none. It appeared from the testimony that Armstrong, after he issued the policy as the agent of the insurance company, instead of delivering it to Wilson, retained possession of it, 'but there was no testimony showing or tending to show that he ever held possession of it in his capacity as trustee in the deed to him from AVil-son. The policy could not have become a pledge in Armstrong’s hands as trustee without some action on the part of Wilson indicating a desire that as trustee he should hold it as security for the indebtedness specified in the trust deed. We have found no testimony in the record showing, or tending in the least to show, that Wilson ever authorized Armstrong, who held the policy for delivery to him, to hold it instead as the trustee named in the deed and as a pledge to further secure the indebtedness to Hopkins.

So, it appears, the claim of Connally & Co. to the part of the proceeds of the policy in controversy was based otn a lien which attached thereto the moment the loss of the machinery by fire occurred, an'd that the claim of Hopkins was based on an assignment to him of the policy made by Wilson on the day after the fire occurred. The nature of the respective claims being as stated, it is clear, we think, that the right of Connally & Co. to the proceeds in question was superior to that of Hopkins, unless the latter was entitled to claim protection as an innocent purchaser of the claim evidenced by the policy. AVithout respect to the question as to whether he was without notice of Connally & Co.’s right or not, the fact that the consideration for the assignment to him was then existing indebtedness of Wilson to him would, it seems, be sufficient reason for denying him such protection. 4 Cooley’s Briefs on Law of Insurance, 3706.

Hopkins insists, however, that if Connally & Co.’s right as lienholders to the fund in question was superior to his, they were es-topped from assarting it as against him. The contention is that Connally & Co. had a choice of remedies for the collection of the debt Wilson and Patten owed them, and that they waived the one they had because of the stipulations in the contract of sale and mortgage, when they sued out the writ of garnishment against the insurance company and made Hopkins a party to the proceedings at an expense to him of more than $200. If it should be conceded that Connally & Co. had two dif-ierent coexisting remedial rights, we think they were not inconsistent, and therefore that the doctrine of election of remedies invoked by Hopkins did not apply. As we understand it, the effect of the stipulations in the contract and mortgage referred to was to create a lien in favor of Connally & Co. on the part of the proceeds of the policy representing insurance on the machinery, and not, as Hopkins assumes, to transfer those proceeds to them. “All actions,” said the writer of the article in Cyc. 267,

“which proceed upon the theory that the title to property remain in plaintiff are naturally inconsistent with those which proceed upon the theory that title has passed to the defendant. But there is no inconsistency between different legal remedial rights, all of which are based upon claim of title to property in plaintiff or all of which are based upon the affirmance of title in defendant.”

But we think Connally & Co. did not have a remedy 'by garnishment. The court found that the land and machinery purchased by Wilson and Patten of Hopkins, and the machinery purchased iby them of Connally & Co., which,.he further found, had become realty, was Wilson’s homestead at the time the fire occurred.

The property being homestead, the insurance on it was not subject to garnishment during the six months following the time when Wilson had a right to demand it of the insurance company. Article 3787, Vernon’s Statutes; Cameron v. Fay, 55 Tex. 59; Ward v. Goggan, 4 Tex. Civ. App. 274, 23 S. W. 479; Ins. Co. v. Jameson, 6 Tex. Civ. App. 282, 25 S. W. 307; Chase v. Swayne, 88 Tex. 218, 30 S. W. 1049, 53 Am. St. Rep. 742; Geise v. Ins. Co., 107 S. W. 555; Stratton v. Ins. Co., 182 S. W. 4; Griffin v. Williams, 142 S. W. 981; McLane v. Haydon, 160 S. W. 1146; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1; Zimmerman v. Robinson, 128 Iowa, 72, 102 N. W. 814, 5 Ann. Cas. 960; 15 Cyc. 262.

It may not be out of place to say here that, had the proceeds of the policy not been exempt from garnishment, the service of the writ on the insurance company would have conferred upon Connally & Co. a right to the part of same in controversy superior to the right thereto in Hopkins. Gause v. Cone, 73 Tex. 239, 11 S. W. 162.

The judgment will be reversed, and judgment would be rendered here if the amount of the part of the proceeds representing insurance on the machinery described in the contract of sale between Wilson and Patten and Connally & Co. and in the mortgage from Wilson to Connally & Co. sufficiently appeared from the record sent to this court. As it does not, the cause will be remanded, with instructions to the court below to ascertain the amount and render judgment for Connally & Co. therefor, or such part thereof as may be necessary to satisfy the indebtedness of Wilson and Patten to said Connally & Co.
      <Ss»For other oases see same topic and KEY-NUMBER in all Keyl-Numbered Digests and Indexes

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


text:
    FORD v. COLE et al.
    (No. 1143.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 9, 1917.
    Rehearing Denied June 13, 1917.)
    1. Brokers &wkey;>57(2) — Compensation—Sale by Owner on Different Terms.
    If an agent is the procuring cause of a sale, he is entitled to the reasonable value of his services, though the principal concludes the sale at a reduced price or on different terms to the purchaser so secured.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 66, 67, 72.]
    2. Brokers <&wkey;56(2) — Compensation—Sale by Owner.
    While a principal, in the absence of a contract to the contrary, may sell without being liable to a broker if such sale is made in good faith, this will not exempt him from paying the broker the reasonable value of his services if he sells to a purchaser produced by the agent, though he did not know the purchaser was so induced at the time of the sale.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 85.}
    3. Brokers <&wkey;88(3) — Actions for Commissions — Questions of Fact.
    The efficient and procuring cause of a sale is a question of fact, to be determined by the court or jury trying the case.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 128, 129.]
    4. Brokers &wkey;>85(2) — Actions for Commissions — Evidence—Procuring Cause of Sale.
    In a broker’s action for commissions on a sale to K. of a part of the ranch placed with him for sale, where defendants claimed that K. was interested in the land by one of them and not by plaintiff, evidence that defendant, when, the land was listed with him, sent a person to tell K. the ranch was on the market and the price for which it could be purchased, and that K. sent back word that he would be in the vicinity of the land and would take the matter up, should have been admitted.
    5. Appeal and Error <&wkey;1056(4) — Harmless Error — Exclusion of Evidence.
    The exclusion of such evidence did not require a reversal, where the court evidently found that plaintiff had abandoned negotiations with K. before the sale was effected and there was evidence to sustain such finding- and to show that a sale could not have been made to K. on the terms plaintiff was authorized to offer.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4190.]
    6. Brokers <&wkey;86(4) — Actions for Gompen- . sation — Sufficiency of Evidence.
    Evidence held, sufficient to warrant a finding that negotiations between plaintiff and K. were terminated before the sale was effected by defendants.
    [Ed. Note. — For other cases, see Brokers, Cent. Dig. § 117.]
    Appeal from District Court, Wheeler County ; Frank Willis, Judge.
    Action by F. G. Ford against C. B. Cole and another. From a judgment for defendants, plaintiff appeals.
    Affirmed.
    J. B. Reynolds, of Wheeler, for appellant. Baker & Willis, of Canadian, for appellees.
   HUFF, C. J.

F. G. Ford brought suit for the recovery of commissions due him by C. B. Cole and W. D. Mathers. Appellant alleges he was a real estate broker, and that appellees were partners, running a cattle ranch, which consisted in part of two tracts of land, known as sections 33 and 34, in Wheeler county; that defendants and each of them employed him to sell the land for them and each of them, at such price and upon such terms as defendants might accept as satisfactory, the price and terms to be determined when plaintiff should procure for defendant a purchaser, and for such services agreed to pay 5 per cent, of the price at which the land sold; that he accepted the employment, and soon thereafter found one J. E. Kelly, and succeeded in interesting him in the land, and which resulted in a meeting between Kelly and defendants, and the sale to Kelly by defendants of the land at the sum of $19,-000; and, further, in the manner above, plaintiff found the purchaser, interested him in buying the land, caused his conference with defendants, and became and was the efficient and procuring cause of the sale, whereby defendants became liable, etc.; and further, at the special instance and request of defendants, plaintiff performed the above services, which were known, accepted, and adopted by defendants, which were the efficient and procuring cause of the sale of the land to Kelly, and by reason thereof defendants were bound to pay plaintiff the reasonable value of his services, which is alleged to be 5 per cent, of the price obtained, or $950. The answer of the appellees in effect amounted to a special denial of the agency contract and the services alleged to have been performed. The case was tried without a jury, and is in this court upon a statement of facts. Appellant testified substantially that Mathers and Oole told him that there was a certain option contract on the land, and, if not accepted, they would list the ranch with him for sale, which consisted of some three sections of land. In a day or two after the expiration of the option Oole came to the office of appellant and said that he and Mathers had talked it over and decided to list the land with him to sell for the sum of $30,000 net to them; that he informed Oole he did not sell land that way. Cole then said to him to price it at $35,000, which would include work, stock, and tools, and that would give them u-oom to drop down in case they had to do so, and directed him to do it right away. 1-Ie also states some few days before the expiration of the option that he had told Cole that a Mr. Kelly had been looking at land near to and adjoining appellees’ ranch, and that if he purchased, he would want more land; that when Oole listed the land he directed Mr. Gossett to go to see Kelly, then residing in Collingsworth county, and state to him the proposition. Cole’s testimony indicates that the contract was substantially as stated by Eord. -The facts in this case indicate that Mr. Kelly, who afterwards purchased two sections of this ranch, was trying to conclude negotiations for the purchase of a section of land in that neighborhood known as the Diggs section, and that Ford was in some way connected with these negotiations; that this trade for the Diggs land took some two or three months to conclude. The facts also indicate that Kelly desired, if he purchased the Diggs’ section, to get additional land near it. From Ford’s testimony he shows that he was trying to interest Kelly in other tracts of land than then under negotiation, and also called attention to the ranch, in which he stated to him that that was the best proposition that he had, and that he knew they thought the price too high, and that they were not interested in it on that account; he yet suggested to them that it was a good proposition. Math-ers, one of the owners and partners, states that he had no conversation with Ford with reference to this land, and knew nothing about his claiming to have had anything to do with inducing Kelly to look at it, but that he wrote Kelly, just when the record does not disclose, calling his attention to the lands in question; that upon one of Kelly’s trips and while out on the Diggs land, he met Kelly, and found that he was an old acquaintance of his, and entered into some preliminary negotiations. Kelly states that he had heard nothing from Ford with reference to this land, and that the first he knew of it was from the letter of Mathers to himself, but on the trip, at which time he concluded negotiations with Mathers for the land, that Ford said something about selling him the entire ranch for $35,000, and wanted him to look at some other lands, and Kelly declined to accept his services to look at other lands, as he had his own car and had other parties with him, and, further, that he was not able to buy the ranch, and did not want that much land, and did not consider Mr. Ford’s proposition, but that he had been in negotiations with Mathers previous to this time.

We have concluded that in disposing of the third assignment of error we may discuss the various issues involved in this ease and raised by other assignments. This assignment is based upon the exclusion of the testimony offered by appellant of G. E. Gossett, to the effect that he went to see Kelly at Dodson-ville, his then residence at the instance and request of Ford, to deliver to Kelly the information, which he did deliver, that a certain option was out, and that the Mathers-Cole ranch was on the market, and to state to Kelly the price for which it could be purchased, and that Kelly sent word back by him that he would be in Wheeler county, where the land was situated and Ford resided, and would take the matter up. The bill of exceptions shows that when Gossett was on the witness stand he was asked what occurred between him and Xielly, and, without any objection being interposed, the trial judge remarked that:

“Any answer the witness might give would not be admissible: First, because the plaintiff himself had already testified that he was employed to sell the entire ranch for $35,000, and that he did not find a purchaser ready, willing, and able to take the ranch at that price; and, second, that any conversation between the witness and Kelly sought to be elicited would be res inter alios acta and not binding.”

The defendant then urged the objection suggested by the court, which he sustained, and refused to permit the witness to answer the question, and announced that such ruling would cover all other questions to the witness relative to his trip and seeing and conversing with Kelly.

If an agent is the procuring cause of of a sale, he is entitled to recover compensation for his services, even though the principal may have concluded the sale at a reduced price to the purchaser so secured. If Ford was the procuring cause in producing Kelly as a purchaser and thereafter appellees changed the terms, he would nevertheless be entitled to something — if not the amount specified in the agency contract, then the reasonable value of his services. McDonald v. Cabiness, 100 Tex. 615, 102 S. W. 721; Goodwin v. Gunter (Sup.) 185 S. W. 295, and authorities cited. While the principal, in the absence of a contract to the contrary, may sell without being liable if such sale is made in good faith (English v. George Realty Co., 55 Tex. Civ. App. 137, 117 S. W. 996; Bomar v. Munn, 158 S. W. 1186), this will not, however, exempt him from paying the agent the reasonable value of his services if the owner should sell to a purchaser who was produced by the agent, even if the owner did not know the purchaser was so induced at the time of the sale. Webb v. Harding, 159 S. W. 1029; Schultz v. Zelman, 111 S. W. 776; Hancock v. Stacy, 103 Tex. 219, 125 S. W. 884: Graves v. Baines, 78 Tex. 92, 14 S. W. 256. The efficient and procuring cause of the sale is one of fact, to be determined by the court or the jury trying the case. Goodwin v. Gunter, supra. Kelly’s testimony and that of Mathers is susceptible of the conclusion that Mathers, by letter to Kelly, first brought about the negotiation between Kelly and Miathers which finally resulted in the sale,, and as a matter of fact Ford did not induce the negotiations, or procure Kelly as a purchaser of the land; at least the evidence is sufficient to have authorized the judgment upon that issue.

The difficulty we have in this case is the reasons given by the trial court in excluding the testimony of Gossett. We believe the court should have admitted this testimony, hut whether it was such an error as will require a reversal is one for our consideration, and whether it was calculated and probably did injure the rights of the appellant. The trial court appears to have regarded the conti-aet as one. for the sale of the entire ranch for $35,000, and that Ford’s testimony disclosed that he did not find a purchaser ready, willing, and able to take the ranch at that price. We, therefore, conclude he found from Ford’s evidence that he had made an effort to sell the ranch to Kelly, who had declined to take the land at that price, and that he was unwilling and unable to purchase the ranch upon the terms offered. There is some evidence from Ford which would indicate that he did nothing further to bring about a sale than the mere statement of the price of the ranch, and that thereafter he abandoned further negotiations, and that appellees in effect made the sale and concluded it with Kelly without the assistance of Ford. There are other facts, however, in the record, which would warrant a different finding, but the statement of the trial court evidences he found as above stated. The Supreme Court, in Pryor v. Jolly, 91 Tex. 86, 40 S. W. 959, appears to have established the rule that where the broker’s effort with the buyer has failed after a fair opportunity and without fault of the owner and resulted in the termination of the negotiations, the owner may, by direct and independent negotiations, effect a sale to the same 'buyer, though it be upon the same terms originally authorized to the broker. Under such circumstances it is said the broker cannot justly be said to be the procuring cause of the owner’s sale, and the latter incurs no liability. Goodwin v. Gunter, and English v. George Realty Co., supra. Kelly himself testified that he did not want the entire ranch, and that he was unwilling and unable to pay that price. He declined to accept Ford’s proffered services to show the land, or perhaps other land. This would be sufficient to base a finding that the negotiations were terminated between them. It is shown by Ford’s evidence that he called Kelly’s attention to the ranch, but that Kelly regarded the price too high and was unwilling to entertain his proposition on that ground; that he never in fact showed the land to Kelly, but directed another to do so; but we are not able to state with any degree of certainty that the party so directed did actually show the land to Kelly. Further on the evidence strongly indicates that Ford was trying to induce Kelly to look at other land, and was not making any very special effort to sell the appellees’ land. While we think the court should have admitted the testimony, yet, under his statement we are not prepared to say any injury resulted, as it .is evident the court regarded appellant’s testimony as showing a termination of the negotiations. The further evidence of Kelly and Mathers shows Gossett’s message, if delivered as claimed by appellant, would not have effected a sale, at the price of the ranch which Ford was authorized to offer and did offer; that all negotiations were suspended, and thereafter the owners made a sale of the two sections for a different price without the assistance or procurement of Ford, and that more than likely it was brought about by the letter of Mathers to Kelly. We have concluded, therefore, to affirm the case.
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