text:
    COBB v. RILEY.
    (No. 8452.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 28, 1916.)
    1. Witnesses &wkey;>255(5) — Refreshing Memory-Statement from Books of Account.
    One who loaded cars with goods sold and shipped, and made out slips of the amount in each car, and turned them in to the bookkeeper, can refresh his memory from a statement thereof drawn from the books, and testify to its correctness; that is, that it is a correct copy of the memoranda originally made by him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 878; Dec. Dig. <®=255(5).]
    2. Sales <5=181(13) — Action fop, Price — Rejection of Goods — Evidence.
    Evidence, in an action for price of gravel sold and shipped, held sufficient to sustain a finding of none of it having been rejected a8 unfit.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 491; Dec. Dig. &wkey;>181(13).]
    3. Sales &wkey;>181(ll) — Action foe Price — Receipt of Goods — Evidence.
    Evidence, in an action for the price of gravel sold and shipped, held sufficient to sustain a finding of defendant having received it; except as to a car billed, without authority shown, to a town, instead of to defendant.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 486, 487, 490; Dec. Dig. &wkey;181(ll).]
    Appeal from Denton County Court; Fred M. Bottorff, Judge.
    Action by J. H. Riley against O. E. Cobb. Judgment for plaintiff, and defendant appeals.
    Affirmed, on condition of remittitur.
    R. H. Plopkins, of Denton, for appellant. Owsley & Owsley, of Denton, for appellee.
   BUCK, J.

J. H. Riley, a resident of Dallas county, sued O. E. Cobb, a resident of Denton county, in the county court of Denton county, and for cause of action pleaded that plaintiff was operating a gravel pit near Car-rollton, Dallas county, and that defendant was a contractor engaged in the business of constructing streets, etc.; that during the year 1913, defendant purchased from the plaintiff some 37 cars of gravel, agreeing to pay therefor 90 cents per yard, less the freight charges from Carrollton to Pilot Point; that defendant agreed to advance the freight charges on the receipt of the gravel at Pilot Point, but the amount of said charges was agreed to be deducted from the total amount due at the agreed price per yard. Attached to plaintiff’s petition were Exhibit A, showing the number of cars shipped, the dates of shipment, and the number of yards contained in each car, and the value of the gravel in each car at the agreed price, totaling $1,164.60; Exhibit B, giving the list of the freight charges paid by defendant on each car, said amount being $623.37. Plaintiff acknowledged the receipt of $143, and sued for the balance alleged to be due, to wit, $398.23. Defendant in his answer alleged that he had paid, in addition to the $143, evidenced by a check, the sum of $7 in money. He further pleaded that under the contract between him and Riley, Riley was to furnish him, f. o. b. cars at Pilot Point, with gravel of the stipulated and agreed grade at 90 cents per yard; that under the terms of said contract it was agreed that if any of the said gravel failed to meet the approval of the engineer, Rush, employed by the town of Pilot Point, said gravel was to become the property of the plaintiff; that thereafter the plaintiff shipped to the defendant some 15 cars of said gravel, which were condemned by engineer Rush and held to be unfit to be used upon the work defendant was doing in the town of Pilot Point; that each of said cars contained approximately 28 yards of gravel. That after the condemnation of said 15 cars of gravel, plaintiff came to Pilot Point and ascertained the number of yards of gravel so condemned. Defendant further pleaded that he had paid, as freight charges on said 15 cars, alleged to have heen condemned, the sum of from $16 to $20 per car, and that it had cost him about $3 per car to unload said cars of gravel so condemned, and that plaintiff became liable to defendant for said freight charges and cost of unloading. He further pleaded that each of the cars received was short from six to eight yards in the amount alleged by plaintiff to be contained and charged for by plaintiff, and that by reason thereof plaintiff was indebted to him in the further sum of $199.80. He further pleaded that plaintiff was indebted to defendant in the sum of $560 for gravel used and shipped by plaintiff out of a gravel pit owned by defendant. Defendant sued plaintiff in recon-vention for the sum of $860. Plaintiff, by supplemental petition, denied the allegations contained in defendant’s answer: First, as to the amount paid plaintiff by defendant; second, as to the condemnation and unfitness of the 15 carloads of gravel; third, as to the claim of defendant for gravel alleged to have been used out of defendant’s gravel pit. Upon a jury trial, the cause was submitted upon a general charge, both as to plaintiff’s claim and defendant’s counterclaim, and the jury returned the following verdict:

“We, the jury, find for the plaintiff, ,T. H. Riley, $398.23, as asked for.”

Whereupon the court entered judgment for plaintiff in said amount, and further decreed that the defendant should take nothing by reason of his counterclaim. Defendant appeals.

The plaintiff’s witness Larkin testified that he loaded the gravel in the 37 cars shipped to Pilot Point, and made out slips showing the amount in each car and each night he would turn in to the bookkeeper these slips to be copied in a book kept by the bookkeeper; that part of the time Miss Mertie Riley was bookkeeper, and later a Mr. Painter took her place; that the witness had looked over the statement handed him by counsel for plaintiff, and that, while he did not make that statement himself, he knew from what the statement was made, and that it was made from the two books kept by the bookkeepers aforesaid; that he had refreshed his memory by looking over the statement, and to the best of his memory it was a correct statement of the amount of gravel that he had loaded. The defendant objected to the last answer of the witness—

“the objection being that the statement offered— the evidence shows that it is a copy from the book, the books having been kept by Mertie Riley and the witness Painter, who has testified — the witness Mertie Riley has not testified, and the statement that it is made from books kept by her is not admissible in evidence unless she is here to testify that the books the statement was taken from are correctly kept.”

We do not think the answer of the witness to the question propounded by plaintiff’s counsel, to wit:

“Since you have done that (that is, refreshed his memory by looking at the statement), can you tell whether it was a correct statement of the number of cars and the amount of gravel in each car; have you looked or can you tell whether you can do that?”

—is subject to the objection urged: First, that it was an effort to prove by the witness a fact from a copy made from books kept by another person without first proving that the books were properly kept; and, second, that the evidence was inadmissible because hearsay. The witness answered the question to the effect that the statement handed to him was a correct statement of the number of cars and the amount of gravel that he loaded for the plaintiff to ship to the defendant at Pilot Point. The witness having made the memorandum from which the purported statement shown the witness was made, after having been copied into the books kept by the bookkeepers and thence transferred to the statement tendered the witness for the purpose of refreshing his memory, would be competent to testify whether the statement so shown the witness was in fact a correct copy of the memoranda originally made by the witness. We understand this to be the effect of the testimony objected to. The statement itself was not offered in evidence at this time, but only the declaration that it was a correct statement, which was, in effect, a shorthand rendition of testimony that the statement shown the witness contained the same items, as to dates, weights, etc., as the lists furnished by him to the bookkeepers, and that the lists prepared by him were correct. In the case of Eppler v. Brown, 30 S. W. 710, cited by appellant, by this court in an opinion by Justice Head, it was held that a manuscript copy of a list of weights of certain cotton taken from a letter book impression of a letter into which such weights had been copied from the weigh-er’s book was not admissible in evidence to show the classification of the cotton, no sufficient excuse being shown for failure to produce the weigher’s book, from which they were first copied. But the opinion further states that:

“There was no claim, that the witness was able to testify from memory after inspecting these papers.”

Thus, in effect, this authority holds that the manuscript copy could properly be submitted to the witness for the purpose of refreshing his memory, and if, after having it so refreshed, he was able to testify that the items therein contained were correct, he would be permitted to do so. In the case of Garrett v. Garrett, 47 S. W. 76, also cited by appellant, it was attempted to prove by a witness that, after the ■ death of deceased, the witness, the plaintiff, and the defendant examined the books of deceased, and from the best they could tell, deceased owed the plaintiff about $208. The court properly held that the books themselves were the best evidence of the facts sought to be established, and that the statements of the witness as to the contents of the hooks were purely hearsay. But if it had been shown, as in this case, that the witness had furnished the data or information as to the items and charges contained in the books, and the witness had been shown a statement purporting to contain such items or charges, we doubt not that the court would have held that the witness could have refreshed his memory therefrom and testified to the correctness of such' items or charges. Gresham v. Harcourt, 83 Tex. Civ. App. 196, 75 S. W. 808; T. & P. Ry. Co. v. Daugherty & Voliva, 33 Tex. Civ. App. 267, 76 S. W. 605; Smith v. James, 42 S. W. 792; Wigmore on Evidence, §§ 748, 750.

We overrule appellant’s first assignment, presenting this alleged error, and also his second assignment directed to the verdict of the jury as being contrary to the evidence and against the weight of the evidence as to the gravel alleged to have been rejected by reason of being unfit for use. While defendant, as well as some of his witnesses, testified to the rejection of some 12 or 15 cars of gravel, yet the plaintiff: and his witness Larkin, and perhaps others, testified to facts and circumstances which put the question of whether or not any of the gravel was rejected as unfit for use squarely in issue, and the jury has passed upon this question of fact adversely to the defendant. Larkin testified, in brief, upon this question that the defendant Cobb came to the pit and selected the kind of gravel he wanted, and that witness loaded the gravel that was shipped to him, and that it was extra good and was better than the gravel defendant picked out. The plaintiff Biley testified to the same general effect, and, further, that, though he went to Pilot Point while the work was under construction, and saw the defendant, he never heard of any of the gravel, being condemned, and that he was not notified to such effect, and never heard of Cobb’s making any objection about the character of the gravel shipped ; that he went to the railroad agent after the work was completed to check over the lists of cars and get the amount of freight, and that at that time there was no gravel in the yard; that he never heard any complaint as to the quality of the gravel until' about the time the suit was filed. Defendant himself testified that in fact he did use at least a part of the gravel he claimed to have been condemned by the engineer for the purpose of making fills around some curbing at the depot, etc.

Appellant’s third and fourth assignments are directed to the insufficiency of the evidence to sustain the verdict and judgment as to the last three cars of gravel delivered, appellant claiming that the undisputed testimony shows that these three cars were not received by the defendant, nor used by him, but received, if at all, by the town of Pilot Point, and receipted for by its agent, one L. Shaw. It is true that the witness B. L. Boran testified:

“That last ear was signed for by L. Shaw, a man who hauled for the city of Pilot Point. Car 16207, on which the freight was $21.72, was billed out on the 28th of November, and was received at Pilot Point on the 1st of December. The three last cars were hauled by Shaw. He receipted for and hauled the three last cars, and the last ear to arrive was billed to the city of Pilot Point. He didn’t say whether any of the gravel shipped by Biley was unloaded down there by the side of the track, but from the time the gravel first commenced to come in there until it was finished, there were several cars unloaded by the side of the track. * * * It was unloaded at the request of Mr. Gobb in order to save demurrage; the cars -were coming in so fast on him that they couldn’t possibly g-et the gravel oil the cars before the time limit was up on them. The gravel that was unloaded there to prevent demurrage was hauled away. There was none of that gravel left there by the side of the track; it was all hauled away. * * * iast oar was receiveci 0I1 December 13th was not billed to O. E. Oobb at all; it was billed to the city of Pilot Point. Yes; that car is included in the exhibit that is attached to the plaintiff’s petition. I presume the city paid the freight on the car of gravel that was shipped to the city of Pilot Point. It is signed for by a man that hauled for them sometimes. Yes; that is the same man that receipted for some gravel that was shipped to Cobb.”

Defendant Cobb testified:

“The freight bill that you have just handed me is for a car of gravel shipped to the city of Pilot Point. That car was shipped on the 11th of December, and arrived at Pilot Point on the 13th of December. I did not get that car of gravel; I was away from there then. That car of gravel is charged to me on the list made up by the defendant in this case. * * * The freight on 'that car was $19.50. That car was signed for by Mr. Shaw. As to whether I did not order and get this ear billed to O. E. Cobb on which the freight was $21.72, will say that was a Cotton Belt shipment, but the city of Pilot Point took that one, too; the city of Pilot Point put two inches of gravel on the streets after I left there. Yes; it shows on this freight bill that the car was consigned to me. It shows that the car was receipted for by Shaw, but then Shaw had nothing to do with my business. I did not pay the freight on that car. I did not get that car. That car was shipped the 2Sth of November. It was along about the 1st of December when we got through with our job there. The freight bill shows that the car was received there and receipted for the 1st of December. I was not at Pilot Point at that time. I think it was about the 1st of December when I left there. As to how it is that it was shipped to me there, will say I was getting this gravel, and after I left there, they had so much water there on the streets that ran from the hotel down there to the depot, they had only put in six inches of gravel there, and the city put two inches more of gravel on there after I had left and finished the job.”

The plaintiff Biley testified:

“There was one car of gravel shipped by me to the city of Pilot Point, and I rendered 'the city a statement for that car of gravel. * * * We got a letter with reference to that car, but I do not have the letter with me. Cobb, nor the city of Pilot Point, or nobody else ever paid me for that carload of gravel. Yes; we shipped the car up there.”

Cobb further testified that on or about the 3d or 4th of December, he went back and settled with the town o£ Pilot Point for the work done, and as to the last three cars of gravel shipped, he testified, in part, as follows:

“No; I don’t know where that gravel went. I know that it was not by my own arrangement that those three earloads of gravel went in there on that job. I couldn’t tell you by what authority the city of Pilot Point took those two cars of gravel that were shipped to me. It is a fact that I left my checks signed by me— to pay the freight. I left them, with Smith and Degan. Yes; I suppose those checks -went to pay the freight. As to whether I raised any fuss about them using my checks to pay the freight on gravel that belonged to the city ot Pilot Point, will say I don’t suppose I knew anything about the city’s books or stuff; De-gan kept those books, and I supposed he was looking after it — it was a small job and I never looked after it. I don’t say that I didn’t know anything about the job; I was there and knew ■a little about it. * * * It was about the last of November or the first of December that we loaded the equipment.”

The witness Boran further testified as to blank checks being left by Cobb to pay the freight. Cobb further testified as follows:

“I said a while ago that I didn’t think it made any difference about the number of cars that were condemned. The reason I said that, I just figured that it didn’t make any difference. I figured that that would be the last time I would have a job that I could use gravel around here, and I knew that it would be the last chance I would ever have of getting that money. * * * As to whether it is not a fact that I was trying to get out of there the best I could and not pay him for the gravel, will say I was trying to get as much as I could on the debt.”

While the evidence is not in a very satisfactory condition for us to determine the question with any degree of accuracy, we have concluded that in support of the verdict and judgment we are justified in concluding that the evidence is sufficient to sustain the verdict and judgment as to the last two cars shipped to the defendant, and the freight 'on which was probably paid by him with the blank checks left for that purpose. There is no evidence to which we have, been directed going to show that defendant’ had notified the plaintiff not to ship any more gravel before the shipment of these two cars mentioned, and even though said cars were In fact used by the town of Pilot Point, 'or by some person other than the defendant, yet, since they were billed to defendant, and apparently the freight thereon was paid by him, we are of the opinion that the appellant cannot complain of the verdict and judgment as to the two cars mentioned, and therefore overrule appellant’s fourth assignment.

But as to the third assignment, complaining 'of the verdict with reference to the last car, which the uncontradicted evidence shows was billed to the town of Pilot Point and the freight probably paid for by it, and said billing is not shown to have been authorized by the defendant, we are of the 'opinion that, so far as the last car mentioned is concerned, the verdict is1 without sufficient evidence to sustain it, and appellant’s third assignment is hereby sustained.

As to the fifth assignment, complaining of the verdict and judgment on defendant’s counterclaim for freight paid by him on the 12 to 16 cars of gravel shipped by plaintiff and claimed by defendant to have been condemned by Engineer Rush, we hold that, for the reason given in discussing the second specification, of error, said assignment must be overruled.

Por the error in permitting plaintiff to recover for the car of gravel billed to Pilot Point, the judgment must he reversed, unless within 15 days from this dale the appel-lee shall file a remittitur in the sum of $14.-70, being $34.20, the ambunt of gravel, less $19.50, amount of freight paid by the city. If said remittitur shall be filed within the time designated, the judgment will be reformed and affirmed; and if not, the judgment will be reversed and the cause remanded. Costs of appeal taxed against the appellee.
      <§=Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DUNKLIN, J.

license: Public Domain

text:
    MUNDAY TRADING CO. v. J. M. RADFORD GROCERY CO.
    (No. 8465.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 18, 1916.)
    1. Payment <&wkey;75 — Sufficiency of Evidence.
    Evidence held to sustain a finding that a payment by defendant corporation was to be applied upon a debt due plaintiff from another firm, which was closely connected with defendant, and which was defendant’s creditor.
    [Ed. Note. — Por other cases, see Payment, Cent. Dig. § 239; Dec. Dig. <&wkey;75.]
    2. Corporations t&wkey;432(12) — Representation by Officers — Payment—Authority.
    Evidence held to sustain a finding that defendant corporation’s manager acted within the scope of his employment in giving plaintiff a firm check to apply on an indebtedness due plaintiff from a third firm, which was a creditor of defendant’s, "and in which defendant’s manager was financially interested.
    [Ed. Note.' — Por other eases, see Corporations, Cent. Dig. §§ 1717, 1737, 1743, 1762; Dec. Dig. <&wkey;>432(12).]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Action by the J. M. Radford Grocery Company against the Munday Trading Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Por opinion upon a former appeal, see 178 S. W. 49.
    D. J. Brookreson, of Benjamin, for appellant. R. W. Haynie, of Abilene, for appellee.
   DUNKLIN, J.

The J. M. Radford Grocery Company instituted this suit against the Munday Trading Company on an account in the sum of $958.61, for goods, wares, and merchandise sold to the defendant company, who was sued both as a private corporation and as a partnership firm composed of J. H. McClain and R. W. Warren, and from a judgment in favor of the plaintiff against the defendant, both as a corporation and as a partnership firm, the corporation and the members of the partnership firm have appealed.

The only controverted issue upon the trial was whether or not a payment of $250 by the Munday Trading Company to the plaintiff should have been credited to its account. The Munday Trading Company was doing business in the town of Munday, and the McClain Company, another private corporation, was doing business in Knox City, about 14 miles distant. The McClain Company had also purchased goods from the Radford Grocery Company, and the payment of the $250 made by the Munday Trading Company was applied as a credit upon the account of the McClain Company. J. H. McClain was president of the McClain Company, and was also one of the members of the partnership known as the Munday Trading Company, which was afterwards incorporated, and after that incorporation was the duly accredited manager of the latter company, with authority to draw checks upon its account. The payment of the $250 in controversy was made by a check drawn upon the Bank of Munday in the name of the Munday Trading Company by J. H. McClain, Manager.

Appellant contends (1) that the payment so made was intended and understood by J; H. McClain and a representative of the Rad-ford Grocery Company, to whom the check was delivered, to be applied as a credit upon the account of the Munday Trading Coip. pany; and (2) that it was not within the scope of the authority of J. H. McClain, as manager of the Munday Trading Company, to apply such payment to the credit of the McClain Company. By appropriate assignments of error, it is insisted that the evidence introduced upon the trial of the suit was insufficient to support a finding in plaintiff’s favor upon those two issues, and those are the only assignments presented here.

On a former appeal of this case the judgment in favor of the plaintiff was reversed,, and the cause remanded for a new trial. The opinion of this court upon that appeal appears in 178 S. W. 49. The evidence then showed that the Munday Trading Company; was a partnership composed of J. H. McClain and R. W. Warren, and we held that the evidence was not sufficient to sustain the finding that it was within the scope of the authority of J. H. McClain, as the managing member of the partnership firm, to apply the funds of the firm to the payment of the, McClain Company’s debt, and thereby to bind R. W. Warren and the partnership by such payment. But on the last trial of the case the evidence shows without controversy that, at the time of the payment, the former partnership firm had been incorporated as the Munday Trading Company. Upon the last trial the representative of the plaintiff firm to whom the check was given by J. H. McClain testified directly and positively that the same was given as a credit upon the McClain Company’s account. It was further shown by undisputed evidence that at the time the check was given the Munday Trading Company owed the McClain Company more than $6,500. The bookkeeper of the Munday Trading Company further testified as follows:

“The business matters of the Munday Trading Company and the McClain Company were closely interwoven. Goods were shipped from the Munday Trading Company one week over to the McClain Company, and in return the goods were shipped from the the McClain Company to the Munday Trading Company. The bulk of the merchandise with which the Munday Trading Company started business came out of the McClain Company’s stock; that is, the bulk of the dry goods.”

There was also introduced in evidence a ledger account kept by the McClain Company with the Munday Trading Company. This account shows several items of goods returned on February 2, 1914, to the McClain Company, one of such items being in the sum of $3,576.63. There was also shown payments made by the Munday Trading Company to other creditors of the McClain Company, and J. H. McClain testified as follows:

“It is a fact that prior to the time I gave this $250 check to Radford, I had paid checks out of the Munday Trading Company’s fund: and in behalf of the McClain Company. It is a fact that I had issued a check in the sum of $500 to the American National Bank of Ft. Worth.”

It was also shown that J. H. McClain had general authority to issue checks upon the Munday Trading Company’s account in the-payment of its debts. It appears, further, that the item of $250 was entered upon the-books of the McClain Company as a credit to the account of the Munday Trading Company with the former company. That credit,, however, was. of date February 2, 1914, while the check was dated January 21, 1914, and' the bookkeeper of the McClain Company, who entered the credit, testified that he did -so solely upon notice from the Radford Grocery Company that the check had been applied as a credit on the account of the McClain Company to the Radford Grocery Company.

We are of opinion that the evidence referred to was sufficient to show that in giving the check it was understood and intended by J. H. McClain that the same should be applied as a credit upon the McClain Company’s account to the Radford Grocery Company, and that the McClain Company should credit the same upon its account with the Munday Trading Company, as was after-wards done, and that it was clearly within the scope of its authority as manager of the Munday Trading Company to so apply the-payment, since in so doing he was but paying the debt of the Munday Trading Company.

For the reasons indicated, the judgment, of the trial court is affirmed.
      <©s»For other cases see same topic and KEY-NUMB ER in all Key-Numbered Digests and Indexes


author: WALTHADL, J.

text:
    DAWEDOFF v. HOOPER et al.
    (No. 640.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 13, 1916.)
    1. Depositions <&wkey;98 — Case in Which Taken.
    Rev. St. 1911, art. 3677, provides that depositions may be used on trial of any suit in which they are taken. Article 7778, as to trial of right of property, relates to sequestration claims by third persons, and to return of the writ to the proper county court. Art. 7779 makes it the duty of the clerk of the court to which such return of the writ is made to docket the same in the name of the plaintiff in the writ as the plaintiff, and the claimant of property as defendant. Plaintiff caused writ of sequestration to issue in original suit for possession of an automobile worth $400, and claimants, by giving bond and oath, instituted derivative suit as defendants in the county court, the court of the original suit. Deposition was taken by one of the claimants; the notice to take it stating that it was “to be read in evidence upon behalf of the claimant,” naming the two. The stipulation as to the use to be made of the deposition when taken was between the attorneys of record of claimants, the plaintiff and defendant in the original suit. The subject-matter of the evidence went to substantiate the issues of claimants. Held that, while the record showed the style and number of the case in which the deposition was taken to be the original suit, the deposition was really taken in the claimant’s suit, and therefore was admissible therein.
    [Ed. Note. — For other cases, see Depositions, Cent. Dig. §§ 280-287; Dec. Dig. <i&wkey;98.]
    2. Insurance <&wkey;607 — Theft Policy — Payment — Subrogation — Assignment of Rights of Insured.
    Where, upon payment of theft policy, the owner’s interest in a stolen automobile is assigned, and a bill of sale of the car made, to the insurance company, the latter may appear as claimant upon sequestration of the automobile.
    [E'd. Note. — For other cases, see Insurance, Cent. Dig. §§ 1512, 1513; Dec. Dig. &wkey;607.]
    3. Sequestration <&wkey;18 — Trial of Right of Property — Parties.
    One in lawful possession of personal property when stolen may appear as 'claimant upon sequestration thereof.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 3S-41-; Dec. Dig. <®=^18.]
    4. Appeal and Error <&wkey;877(4)- — Right to Allege Error — Parties.
    Where two parties join in claiming personal property upon its sequestration and both recover judgment, the fact that one of them cannot maintain such claim is not error of which plaintiff may complain.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3567; Dec. Dig. <&wkey;> 877(4).]
    5. Sequestration c&wkey;18 — Trial of Right of Property — Question for Jury.
    On trial in sequestration proceedings to determine claim to a stolen automobile, the rule that the jury should pass on the testimony where the only evidence of title and right of possession is that of interested parties, did not apply where disinterested witnesses not parties to the suit identified the car by its number, etc., since such evidence was strongly corroborative of claimant’s testimony.
    [Ed. Note. — For other cases, see Sequestration, Dent. Dig. §§ 38-41; Dec. Dig. &wkey;>18.]
    6. Sequestration <&wkey;18 — Trial of Right of Property — Burden of Proof.
    Where, upon writ of sequestration, a claimant tenders issue as to right of property by giving bond and oath, the burden of proving title and right of possession is on claimant if when the levy was made the property was in the possession of defendant in the writ.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. &wkey;?18.]
    7. SEQUESTRATioN&wkey;>18 — Trial of Right of Property — Burden of Proof.
    Where, upon writ of sequestration, a claimant tenders issue to try right of property by giving bond and oath, the burden is on the plaintiff in the writ of proving that possession was in defendant where the return of the officer on the writ does not disclose in whose possession the property was found when the levy was made.
    [Ed. Note.- — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dee. Dig. <§=^>18.]
    8. Sequestration &wkey;>18 — 1Trial of Right of Property — Burden of Proof.
    Where it is uncertain in whose possession the property Was when seized, the trial court should direct which party shall assume the burden of proof of ownership and right of possession.
    [Ed. Note. — For other cases, see Sequestration, Cent. Dig. §§ 38-41; Dec. Dig. &wkey;18.]
    9. Appeal and Error <®=^925(2) — Record-Presumption.
    Where, upon writ of sequestration, a claimant tenders issue to try right of property by giving bond and oath, and where, it being uncertain in whose possession the property was when seized, the record does not show that the court directed which party should assume the burden of proving title and right of possession, it will be presumed that the burden was on the plaintiff in the writ.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3730-3733; Dec. Dig. &wkey; 925(2).
    Appeal from El Paso County Court; Adrian Pool, Judge.
    Action by Jack Dawedoff against W. H. Hooper and another. From judgment for defendants, plaintiff appeals.
    Affirmed.
    Jones, Jones & I-Iardie, of El Paso, for appellant. U. S. Goen, of El Paso, for appel-lees.
   WALTHADL, J.

This is a suit for the trial of the right of property of an automobile.

Appellant tendered issues in which he alleged that on the 21st day of January, 1914, he purchased the car from Phil Gallick and wife, they then being the owners thereof and having the car in their possession in El Paso, Tex.; that on said date, after said purchase, Gallick and wife regained possession of the car; that thereafter, on January 23, 1914, he filed suit against Gallick and wife for possession, docket number being 4201, and on said clay caused a writ of sequestration to issue in said cause, and on the same day executed by the sheriff by levying upon said car and taking it into the possession of the sheriff; that said car at the time of the levy was in the possession of Gallick and. wife and 'their agents and not in the possession of Hooper, Firemen’s Fnnd Insurance Company, or their agents; that the car was valued by the sheriff at $400; the presentation to the sheriff by claimants of the oath and bond and the delivery of the car to claimants; that in the original suit No. 4201, on the 19th day of March, 1914, he obtained a judgment, adjudging him to be the owner -of the said car as against Gallick and wife, and that as against them he have his writ of restitution and be placed in possession of said car; that he is the owner of the car and entitled to its possession.

Appellees, claimants, tendered issues: That on the 11th day of January, 1914, Hooper, as agent for the Standard Door & Sash Company, was the owner of said automobile, together with equipment. That on said date, said car was stolen from the possession of Hooper in Los Angeles by parties unknown to claimants. That thereafter the car was located in El Paso, Tex., in the possession of Phil Gallick, who afterwards transferred same to Dawedoff. That at the time of the theft of the car, it was insured against theft with claimant, Firemen’s Fund Insurance Company, giving policy number, amount, date, time of expiration; that the policy was in force at the time of theft. That on being advised of the theft of the car, and when the car was located, claimant company took an assignment of all the interest of the owners to the insurance policy and to said car and became subrogated to all the rights, title, and interest in the car which the original owners at any time had. That claimants at once filed oath and claimants’ bond and took the car thereunder. ■

The case was tried to a jury. After the evidence was heard, the trial court instructed a verdict for claimants.

Appellant’s first ground of error is to the admission in evidence over the objection of appellant to the deposition of Gilmore taken in the case of Dawedoff v. Gallick et ux., No. 4201 while the case on trial in which the deposition was admitted was styled Jack Dawedoff v. W. H. Hooper and Firemen’s Fund Insurance Co., No. 4296. His proposition is that a deposition is not admissible in evidence in any suit except the suit in which it is taken. The Gilmore deposition was taken by the defendants by direct interrogatories and bears the original suit number of Dawedoff v. Gallick et ux., the suit number being 4201. The notice to take the deposition is as follows:

“In the county court of El Paso county, Texas, March term, 1914, Jack Dawedoff, Plaintiff, v. Phil Gallick et ux., Defendants. No. 4201* To Jack Dawedoff, or His Attorneys of Record, Messrs. Jones, Jones & Hardie, Phil Gallick and wife, Rita Gallick or to John T. Hill Their Attorneys of Record: You will please take notice that after five days’ service hereof, I shall apply to the clerk of the county court of El Paso county, Texas, for a commission to take the deposition of George D. Gilmore and W. H. Hooper, residing in the city of Los Angeles, California, to the following direct interrogatories, the answers to which, and to such cross-interrogatories as you'may see fit to file, to be read in evidence upon behalf of the claimant, Fireman’s Fund Insurance Company and W. II. Hooper, in the above-styled and numbered cause. [Signed] U. S. Goen, Attorney for Firemen’s Fund Insurance Company.”

The following agreement accompanied the interrogatories:

“It is hereby agreed by and between U. S. Goen, attorney for the claimant, Firemen’s Fnnd Insurance Company, Jones, Jones & Hardie, attorneys of record for the plaintiff, Jack Dawe-doff and John T. Hill, attorney of record for defendant, Phil Gallick et ux. that filing, service of copy, time and issuance of commission is hereby waived and that the answers to the direct and cross-interrogatories herein may be taken by any officer qualified by law to take and certify to depositions; that the same may be taken upon the originals and returned to the clerk of the court in which said cause is pending and any and all formalities regarding the return and certifying of same are hereby waived, reserving, however, any objection to the competency or admissibility of the testimony.”

The agreement was signed by the several attorneys named in the body of the agreement as attorneys for their respective clients, as stated. The answers to the interrogatories, after stating the style and number of the case as above, the place of taking the deposition, the name of the officer, and his office as notary public, the appearance of the witness, continued:

“Produced on behalf of the claimant, Firemen’s Fund Insurance Company, in the above-entitled action now pending in said court.”

The envelope inclosing the deposition of the witness gave the style and number of the case as above. The witness Gilmore, in the deposition, gave the history of the automobile, identifying same by its engine, motor, and factory numbers, as stated in the claimant’s issues above, the issuance and the payment of the policy of insurance, the transfer of the policy, the execution and delivery of the bill of sale, inclosing a copy, all as in the claimant’s issues stated.

Article 3677, Revised Statutes, 1911, provides that depositions may be read in evidence upon the trial of any suit in which they are taken. Article 7778, Revised Statutes, has reference to jurisdiction and return of the writ under which the levy was made according to the assessed value of the property. Article 7779, Revised Statutes, makes it the duty of the clerk of the court to which the return of the writ is made, to docket the same in the name of the plaintiff in the writ as the plaintiff, and the claimant of the property as defendant. All of the transactions had in the case, the issuance of the writ of sequestration in the original suit, the return of the writ, the filing of the claimant’s oath and bond were all in the same court.

The question here presented is: Was the deposition of Gilmore taken in the suit in which it was read in evidence? We are referred to People’s National Bank v. Mulkey et al., 94 Tex. 395, 60 S. W. 753. The Supreme Court in that case held that the statute prescribing that depositions may be read in evidence upon the trial of any suit in which they are taken determines the extent to which they may be used; that the words of the statute are so plain that there is no room for construction, and clearly limit the use of depositions to the suit in which they are taken. Appellant’s proposition, no doubt, states the law, but has it application in the case at bar?

There is some confusion, disclosed by the record, as to the suit in which the deposition was really taken and in which it was intended it should be used. The deposition of the witness was taken by the claimant. The notice to take the deposition states that it is “to be read in evidence upon behalf of the claimant,” naming the two. The stipulation •quoted as to the use to be made of the deposition when taken is between the attorneys of record of the claimant, the plaintiff and the defendants in the original suit. The subject-matter of the evidence of the witness Gilmore goes to substantiate the issues of the claimants, rather than Gallick and wife. In fact, the evidence in the deposition would at most be remote, if admissible at all, as between Dawedoff and Gallick and wife, so we conclude that, while the record shows the style and number of the case in which the deposition was taken to be the original suit of Dawedoff v. Gallick and Wife, the deposition was really taken in .the claimant’s suit. The assignment is overruled.

The second ground of error is to the admission of the deposition of witness Hooper. The same facts apply to the taking of the deposition of this witness as discussed in the former assignment. The assignment is overruled.

The third ground of error insists that the evidence is insufficient to justify a peremptory instruction for the claimants. The evidence clearly identifies the automobile as the one stolen from the place where it was temporarily left by Hooper in Los Angeles a short time before it was discovered in El Paso. Dawedoff showed no title or right of possession to the car other than that obtained through Gallick and wife, and they •seem to have had neither. Hooper was in lawful possession of the car before and at the time it was stolen and had a right to maintain that possession as against a trespasser, at the time of the trial. His right of possession did not arise after, but before, the ear was stolen. Walmsley v. Hubbard, 24 Tex. 612. The Firemen's Fund Insurance ■Company had insured the car against theft; •the policy issued by them was in force at the time of the theft; that company, when the theft was reported, paid the policy and took an assignment of all the interest of the owners of the car to the policy of insurance and a bill of sale to the car. We think the right of the company to maintain a suit as claimant in the action would not be in the position of one whose title and right of possession arose subsequent to the levy of the writ of sequestration, or as a mortgagee of a chattel out of possession. Craig v. Martin-Bennett Co., 102 S. W. 1172; Jones et al. v. Lawrence, 151 S. W. 584. In Osborn v. Koenigheim, 57 Tex. 91, it is said that:

“The statute regulating the trial of the right of property is intended to give one who claims to be the owner of property, or to one who is entitled to the possession of property, a simple remedy by which he may protect both his title and possession.”

But if we are not sustained by the authorities in our view as to the right of the Firemen’s Fund Insurance Company to maintain a claimant’s suit, we think it quite clear that claimant Hooper can do so, and if he could, the fact that noth claimants recovered judgment would not be such error that appellant could complain and have the judgment set aside. The assignment is overruled.

Appellant complains, in his fourth ground of error, of the peremptory instruction, because the only evidence of appellees’ title and right of possession was that of interested parties, all parties to the suit, and for that reason it is claimed the jury should pass upon the truth of the testimony.. The authorities on the proposition are in conflict, but our Texas courts seem to sustain the contention, as an abstract proposition. Burleson v. Tinnin, 100 S. W. 350, and cases there cited. We think, however, the rule invoked has no application to the instant case. The evidence of Good, identifying the car by its number, and that of Gilmore, both disinterested witnesses, and not parties to thé suit, we think strongly corroborate the testimony of Hooper on the issues tendered, even if Hooper was such an interested party as to bring him within the rule. Again, the contest involved the ownership of the car at the time of the seizure under the writ. We think it quite doubtful as to whether the burden of proof on the trial of the issues was on the claimants. The party on whom the burden rests depends upon the question as to who was in possession at the time of the levy of the writ of sequestration. Plaintiff tendered the issue that the car was in the possession of Gallick and wife at the time of the levy. If Gallick and wife were in possession, the burden of proof would be on the claimant. The return on the writ does not disclose who was in possession. Where the return of the officer on the writ does not disclose in whose possession the property was found when the levy was made, the burden is on the plaintiff of proving that the possession was in the defendant in the writ. Boaz & Co. v. Schneider, 69 Tex. 128, 6 S. W. 402.

Plaintiff offered no' proof as to who was in possession at the time of the levy. N. S. Good, the officer who executed the writ, said, “The car was located by the sheriff in an alley near the Elk’s Home,” but made no statement as to who, if any one, was in possession. The rule is that where it is uncertain in whose possession the property was when seized, the court should direct which party shall assume the burden of proof. Miller v. Sturm, 36 Tex. 261. The record does not show that the court directed which party should assume the burden. We take it that the burden of proving ownership and right of possession as against the claimants was on the plaintiff, under the Boaz-Schneider case, supra. The assignment is overruled.

What we have said in discussing the fourth assignment, we think sufficient to dispose of the fifth, sixth, seventh, and eighth. We think the evidence of the claimants sufficient to clearly show that Hooper, one of the claimants, was in possession of the property fqr the owner at the time it was stolen in Los Angeles, and that, before the plaintiff bought the car from Galliek and wife, and before the writ of sequestration was issued and a levy made thereunder, and, as against plaintiff, would have the right to join in the suit with the owner for the possession of the ear; that the Eiremen’s Eund Insurance Company having insured the car against theft before the levy of the writ, and that after the car was stolen, having paid the insurance, and bought the car, and having taken an assignment from the owners of all their rights in the car, had such rights as that it could assert its ownership and right of possession in a trial of the right of property. Under the evidence, the court was not in error in directing the verdict, as there was no controverting evidence as to claimants’ ownership and right of possession.

The case is affirmed.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MERCHANTS’ & BANKERS’ FIRE UNDERWRITERS v. PARKER.
    (No. 8451.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 4, 1916.
    Rehearing Denied Dec. 9,1916.)
    1. Insurance &wkey;>645(3) — Estoppejn-Plead-ing.
    In an action on a fire insurance policy, plaintiff cannot rely on the estoppel of defendant to deny the agency of the one who took plaintiff’s application and premium, unless the estoppel is specially pleaded.
    [Ed. Note. — Eor other cases, see Insurance, Cent. Dig. §§ 1554, 1634-1641; Dec. Dig. <&wkey; 645(3).]
    2. Insurance <&wkey;130(2) — Contract—Approval of Application.
    Where an application for fire insurance provided that no liability should attach until the application was actually approved by the home office, there can be no recovery where the jury found that the application had not been approved, since until the approval there was no contract, but only a proposal for a contract.
    [Ed. Note. — For other eases, see Insurance, Cent. Dig. §§ 196, 197; Dec. Dig. &wkey;130(2).]
    Error from District Court, Wichita County; E. W. Nicholson, Judge.
    Action by I. D. Parker against the Merchants’ & Bankers’ Fire Underwriters. Judgment for the plaintiff on special issues found by the jury, and defendant brings error.
    Reversed, and cause remanded.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for appellant. W!eeks & Weeks, of Wichita Falls, for appellee.
   BUCK, J.

The following statement of the nature and result of the suit made by the defendant in error we find to be substantially correct:

“This suit was instituted on November 10, 1914, in the district court of Wichita county, Texas, by I. D. Parker against the Merchants’ & Bankers’ Eire Underwriters, alleged to be a ‘mutual reciprocal lire insurance company, unincorporated, of Bexar County, Texas, of which J. A. Baker & Co. are general attorneys and managers.’
“Plaintiff alleges in substance: That about April 6, 1914, he applied to defendant for a policy of fire insurance in the sum of $700, covering his residence and household goods, in fifiectra, Wichita county, Texas, for a term of six years at an annual premium of $11.20. That the application was in writing and was delivered to defendant’s duly authorized agent, A. J. Adams, together with the first premium, both of which were accepted by defendant and a policy of fire insurance issued to defendant. Plaintiff further alleged: That the original policy had either been lost or was in the possession of defendant. That on May 25, 1914, while the policy was in full force and effect, all the said house and contents were completely destroyed by fire. That such property was then worth $1,250. Then plaintiff further pleaded that he had complied with all the terms and conditions of the policy, made due proof of loss and demanded payment of the insurance, etc., and prayed for judgment for $700.
“By its first amended original answer, defendant denied all the material allegations of plaintiff’s petition; denied the agency of A. J. Adams; and further pleaded in defense the following terms of its application: ‘And no liability of the association shall attach until this application has been actually approved at the home office of the association.’ Defendant denied the receipt of any such insurance application at its home office, and further specially pleaded the failure of plaintiff to make proof of loss. That plaintiff’s application was destroyed in his presence and his money refunded by A. J. Adams.
“By a supplemental petition, plaintiff further alleged the agency of Adams, the receipt of the application and premium by defendant, and the acceptance and approval of same, willingness at all times to accept the policy as applied for, that liability attached as soon as defendant approved the application, and pleaded estoppel to defendant’s issue in reference to proof of loss.
“The case was tried before a jury on March 25, 1915, and submitted to them on special issues, which together with the answers of the jury are as follows:
“Issue 1:- Did or did not the plaintiff sign an application to A. J. Adams, for insurance on his house and household goods in defendant company? Answer yes or no. Answer: ‘Yes.’
“Issue 2: If you answer the above issue in the affirmative, then for what amount was plaintiff’s house and household goods to be insured? Answer: ‘$700.’
“Issue 3: Was or was not A. J. Adams the agent of defendant company, at the time he solicited insurance from plaintiff, and gave him the receipt and received from plaintiff the check offered in evidence? Answer yes or no. Answer: ‘Yes.’
“Issue 4: Did or did not the defendant company ratify the acts of A. J. Adams, in the soliciting of said insurance from plaintiff and in giving said receipt and in receiving said check for first premium, by accepting the application and money for first premium? That is, if he did solicit said insurance and give said receipt and accept said check, if it did accept same. Answer, yes or no. Answer: ‘Yes.’
“Issue 5: Did or did not the defendant company receive the application and money for first premium on said insurance? Answer yes or no. Answer: ‘Yes.’
“Issue 6: Did or did not the defendant company act on said application' and accept and approve same? Answer yes or no. Answer: ‘No.’
“Issue 7: Did or did not the defendant company receive and keep the cash premium _ paid by plaintiff for said insurance? That is, if any cash premium was paid. Answer yes or no. Answer: ‘Yes.’
“Issue 8: Did or did not plaintiff, within 91 days after said loss by fire, make proof of the loss of his said house and household goods in compliance with the requirements of the application and policy? Answer yes or no. Answer: ‘Yes.’
“Issue 9: Did or did not A. J. Adams destroy said application? Answer yes or no. Answer: ‘No.’
“Issue 10: Did or did not A. J. Adams return to plaintiff the money plaintiff paid him for the first premium on said insurance? Answer yes orno. Answer: ‘No.’”

On these findings both parties made motion for judgment, the court granting plaintiff’s motion, and entering judgment for him in the sum of $644, with interest from March 25, 1915, at 6 per cent, per annum. From this judgment the defendant has prosecuted this writ of error.

The first assignment of error is as follows:

“This honorable court erred in overruling defendant’s motion for judgment, because the undisputed evidence showed that A. J. Adams was not the defendant’s agent. That the defendant did not approve an application of plaintiff for insurance or contract with plaintiff for insurance.”

The second assignment is:

“This honorable court erred in rendering judgment for plaintiff^ because the undisputed evidence and the findings of the jury showed that there was no contract of insurance in existence between plaintiff and defendant prior to the fire complained of.”

These two assignments will be discussed together.

As will be remembered, the sixth special issue was as follows:

“Did or did not the defendant company act on said application and accept and approve same? Answer yes or no.” To which the jury answered: “No.”

The defendant, both by pleading and testimony, denied the agency of A. J. Adams, the purported agent who took the application for insurance of the plaintiff. J. A. Baker, who describes himself as “attorney and manager for the Merchants’ & Bankers’ Fire Underwriters,” but who testified that he owned the business, denied that at any time Adams had been employed or authorized to solicit insurance. He testified that Adams had, through him, applied to the commissioner of banking and insurance for a commission to act as an insurance agent for the defendant, but that such application had not been granted by said commissioner, and that Adams was not in fact at any time an agent of defendant company. I-Ie further testified that the last time he had heard of Adams, the latter was in Florida. He denied that the company ever received an application for insurance from plaintiff, either through A. J. Adams, or any other person, or had ever received any check or other payment for the first premium on the policy, or that said association or he knew anything about any application having been made, or about any money having been paid thereon, until after the fire occurred. While there is no direct contradiction of this testimony with reference to the employment of Adams by the defendant, yet there is certain testimony constituting a sufficient basis perhaps, especially under a plea of estoppel to deny agency, for the finding of the jury that said Adams was the agent of defendant. The plaintiff testified that Adams approached him several times in the town of Electra, soliciting his insurance, and that finally he gave to said Adams a check, dated April 15, 1914, for $11.20, and signed an application, dated April 6, 1914, for insurance on his residence and household goods in the sum of $700, for a term of six years, the cash payment being the first of six annual premiums. The check was introduced in evidence as having been paid through the local bank, and indorsed on the back “J. A. Baker & Co., per A.” He explained the difference between the date of the check and the date of the application was due to the fact that the agent agreed to accept a check dated a few days ahead, as at the time the application was made he was a little short of funds.

W. I-I. Dallishaw testified that he gave an application for insurance to Adams in March, 1914, and paid Adams by check, and said check was cashed through the bank, and that Adams gave him a receipt similar to that given to plaintiff; that witness signed an application giving a description of the property, said application providing for a premium to be paid in annual installments; that -witness, in response to his application, received the policy with the name “Merchants’ & Bankers’ Fire Underwriters Company” on it.

S. C. Chapman, assistant cashier of the First National Bank of Electra, testified to knowing A. J. Adams since February, 1914, and that he came into the bank with Thomas Tripp “who is represented as the state agent of the Merchants’ & Bankers’ Fire Underwriters, San Antonio.” He further testified to Adams’ having an account in the bank, and giving checks on said account, and he identified the signature of Adams on the check given by the witness Dallishaw. He further testified that Adams had written a policy in the defendant company in April, 1914, for T. D. Walker, a hotel man at Electra, and that Adams had with him while in Electra supplies with the name of defendant company thereon.

John Mann testified to having a policy in the defendant company, the application for which had been given to Adams, and that witness had received a receipt from Adams for the first premium. That he did not receive any policy, and he wrote the defendant company, and that later Mr. Tripp came to see him, and that witness received a policy subsequent to the visit of Mr. Tripp, and that the policy came from San Antonio.

T. C. Tripp testified that he had paid to the company the amount of the first year’s premium claimed by the witness Mann to have been paid to Adams, that Mann was a friend of long standing, and that he did not want him to lose anything by reason of the transaction with Adams. He further stated that it was his remembrance that the name “R. F. Stevenson & Co.” was signed to the Mann receipt; that he knew R. F. Stevenson, but not “R. F. Stevenson & Co.”; that Stevenson was one of defendant’s agents living at Proctor, and that he did not recall that said Stevenson had any authority to appoint any agent to help him; that Steven■son was still an agent for the company. The witness further testified that he was with Adams at Electra in February, 1914, and that he (witness) was trying to get Adams a commission from the commissioner of hanking and insurance—

“to be our duly authorized agent, but he did not get it. It would seem that he solicited. I knew last December that Adams had solicited, when he was talking to John Mann here in Wichita Falls. I knew that he had no-right to solicit without authority. The commissioner of banking and insurance is at Austin. When I was in Electra with Adams I was trying to get him an appointment. I did not get him the appointment. It is customary for a man not to solicit insurance until he gets a permit from the commissioner of insurance. I did not solicit before I got my commission. Adams was assisting me in the securing of business at Electra. I went into the bank with him a number of times. If he collected money and remitted it .to the Merchants’ & Bankers’ Fire Underwriters, I do not know it. I do not remember the T. D. AYalkef policy. I have no recollection of the Crawford & Menerick policy (taken out by the witness Dallishaw). I do not know anything about Adams’ soliciting that business. I do not know anything about any policy being issued. 1 do not know anything about the policies, but if they were to my account they had my name on the back. I was with Adams some four to six days. I do not remember one he solicited when he was with me. It was some kind of a hotel and burned, and we had to pay for it. I sold that policy myself. I do not remember of him ever soliciting at all. He was with me and I solicited and he listened to me.”

He further testified that Stevenson took applications for the appointment of agents, but did not have the power to appoint such agents. That in December, 1914, he saw Adams in Wichita Falls, and knew at the time that he had taken money from John Mann without any authority, and that he (witness) had not personally taken any steps to have said Adams prosecuted. That he had heard from Adams in January, 1915. He further testified:

“I represent the defendant in my limited way in North Texas. Mr. Baker is over me. He is the one who is referred to in the policy form ‘J. A. Baker & Co., Attorneys and Managers.’ * * * I have looked up the John Mann policy to the Star Furniture Company, and find that the premium of $23.65 was charged to me. My duties with reference to this defendant are to solicit applications, and I never do anything else, unless I have specific instructions from the company. By soliciting I mean that I take an application and go to a man and talk about insurance, tell him what I have done, the company I am with, what price on his risk, what the board rate is, and I fill out the application and have him to sign it, give him a receipt, and send the application to the head office, and, if it is approved, a policy is issued on it, and, if not, it is sent back. Mr. J. A. Baker of San Antonio approves applications. When I give a receipt I sign it as nearly like the commissioner of insurance specifies as I can; my name always appears on every receipt I give. I never sign ‘J. A. Baker’ per myself; I haven’t that authority. Adams and myself were in Electra in the early part of February, 1914, for four, five, or six days.- To have had Adams appointed agent I had to have him file an application to the commissioner of insurance and banking at Austin, Tex., stating.the men that he had worked for for the last five years; letters of recommendation — everything to show his reputation for five years past, that is the law; you have a form to comply with and I had him fill that out and forward it to Mr. Baker; his duty was to forward that to the commissioner of insurance and banking; the permit would be sent to Baker in order that a man might become our agent; after considerable negotiations the commissioner refused to issue that permit; it was turned down. If Mr. Baker declines a permit, it is done; if it is sent to the commissioner and he declines it, it is done; I cannot pass on things at all; nor can anybody else except those two.”

But whether the testimony above set out is sufficient to sustain plaintiff’s plea of the agency of Adams, in the absence of a plea of estoppel, which the plaintiff’s pleadings do not contain, and which equitable doctrine must be specially pleaded, except in action of trespass to try title (Townes’ Texas Pleading [2d Ed.] 543; Scarbrough v. Alcorn, 74 Tex. 358, 12 S. W. 72), we are not called oh to decide, for, as we view it, the question presented in appellant’s second assignment is decisive.

If the finding of the jury in answer to issue No. 6 be given its natural and proper effect, the other findings become immaterial, and judgment should not have been rendered for the plaintiff. If the defendant company did not accept and approve the application, the contract of insurance was not consummated, and, ordinarily it should be held in such an instance, the insurance company would not be liable for loss accruing, for the application made by plaintiff below provided:

“And the association shall not be bound by any act done, or statement or agreement made, or promise, or knowledge of any solicitor, deputy or other person, which is not contained in this application, and no liability of the association shall attach until this application has been actually approved at the home office of the association, and the undersigned applicant for the proposed insurance hereby agrees to accept the policy issued, by the association upon the application.”

See Life Ins. Co. v. Hockett, 35 Ind. App. 89, 73 N. E. 842; Sterling v. W. O. W., 28 Utah, 505, 80 Pac. 375, on rehearing, Id., 28 Utah, 526, 80 Pac. 1110; Walker v. Ins. Co., 51 Iowa, 679, 2 N. W. 583; Cooksey v. Ins. Co., 73 Ark. 117, 83 S. W. 317, 108 Am. St. Rep. 26; Chamberlain v. Ins. Co., 109 Wis. 4, 85 N. W. 128, 83 Am. St. Rep. 851; Ins. Co. v. Rudolph, 45 Tex. 454; Coker v. Atlas Acc. Ins. Co., 31 S. W. 703; Ætna Life Ins. Co. v. Hocker, 39 Tex. Civ. App. 330, 89 S. W. 262.

Cooley in his work entitled. “Briefs on the Law of Insurance,” vol. 1, p. 412 (c), says:

“The making of an application is, however, merely a step in the creation of a .contract. As was said in Lee v. Life Ins. Co., 15 Fed. Cas. 158, the rights of the applicant are not concluded by the making out of the application. When the application is made out and forwarded to the company, it is not yet a contract of insurance. It has then only attained the position of a proposition on one side, which must be accepted on the other. That is to sajr, until it is accepted by some one having authority to accept the terms proposed, the application is not a contract, but- merely a proposal.”

In some cases it has been held that where an application has been made and forwarded to the insurance company and retained by it an unreasonable length of time, without action, and the applicant has relied on his protection to his loss, the insurance company is liable. See 1 Cooley on Insurance, supra, 426 (h); Adams v. Eidam, 42 Minn. 53, 43 N. W. 690; Waters v. Security, etc., Co., 144 N. C. 663, 57 S. E. 437, 13 L. R. A. (N. S.) 805; Travelers’ Ins. Co. v. Jones, 32 Tex. Civ. App. 146, 73 S. W. 978 (writ of error denied); Cont. Ins. Co. v. Haynes, 10 Ky. Law Rep. 276; Halle v. N. Y. Life Ins. Co. (Ky.) 58 S. W. 822, cited in Ins. Co. v. Neafus, 145 Ky. 563, 140 S. W. 1026, 36 L. R. A. (N. S.) 1211.

But without discussing each of these cases, and others of similar import, separately, it is perhaps sufficient to say that in each case the conclusion reached was based upon a state of facts peculiar to it, and showing an instance of equitable grounds of recovery upon the part of plaintiff by reason of the negligent delays of the defendant. Moreover, the holding in this class of cases is in conflict with the trend of authority throughout this country. • Quoting the language used in Life Ins. Co. v. Rudolph, supra:

“It devolved on the plaintiffs to prove, according to their averment, that the contract of insurance had been completed by the acceptance on the part of the company of the application. By the terms of the receipt no insurance was attempted to be created until the application was accepted. Mr. Parsons, in treating the subject, says: ‘It would seem that a policy may take effect if the bargain be completely made, although, before any delivery of it, the one insured has died, and delivery was withheld in consequence. It need not be added that the evidence must be very clear and the circumstances very strong to give effect to such a policy.’ ”

In the case of Preferred Acc. Ins. Co. v. Stone, 61 Kan. 48, 58 Pac. 986, the Supreme. Court of Kansas announces, we think, the true doctrine, where it, in effect, says when a contract of insurance has been agreed upon, the execution of a policy is not essential to its taking effect, unless part of the contract be that it shall not take effect until the execution and delivery of that instrument; and, except in such cases, the insured may bring suit upon the agreement before the issuance of the policy, if a loss has occurred in the meantime, and may also join in the suit a cause of action in equity for the specific performance of the contract to issue a policy. Of course, no such condition exists in the instant case but, on the contrary, the application provided that the contract of insurance should not take effect until the application had been approved by the home office.

We conclude that the trial court erred in rendering judgment for plaintiff, in the face of the jury’s finding to special issue No. 6, for which error the judgment must be reversed.

Judgment reversed, and cause remanded.
      iiraoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    BLOCH v. BLOCH.
    (No. 646.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.
    Rehearing Denied Jan. 5, 1917.)
    1. Divorce <&wkey;93(3) — Pleading — Petition-Sufficiency.
    In a wife’s suit for divorce on the ground of cruel treatment, in the absence of an allegation of physical violence or imputation of want of chastity the petition must allege such treatment as will produce a degree of mental distress which threatens to impair her health.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 300, 304-307; Dec. Dig. &wkey;93(3).]
    2. Divorce &wkey;?93(3) — Pleading—Petition— Sufficiency— Special Exception.
    In a wife’s suit for divorce on the ground of cruel treatment, a petition, which failed to specifically state the time, place, and material circumstances of acts of cruel treatment alleged, is insufficient upon special exception, as stating merely the conclusion of the pleader.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 300, 304^307; Dec. Dig. &wkey;93(3)J
    3. Divorce <&wkey;91 — Pleading—Jurisdictional facts.
    In a divorce case, a petition should follow the language of the statute respecting jurisdictional facts of residence in the state and county.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 287-289; Dec. Dig. &wkey;91.]
    4. Divorce <&wkey;150(2) — Trial — Findings of Fact and Conclusions of Law.
    In a divorce case, where the evidence was conflicting upon material issues, the failure of the court to file findings of fact and conclusions of law upon seasonable request therefor was error.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 505-508; Dec. Dig. <&wkey;>150(2).]
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

      Suit for divorce by Annie Klein Bloch against Herman Bloch. Decree for plaintiff, and defendant appeals.
    Reversed and remanded.
    Jno. T. Hill and O. W. Croom, both of El Paso, for appellant. P. E. Gardner and W. S. Berkshire, both of El Paso, for appellee.
   HIGGINS, J.

Appellee brought this suit against appellant for divorce, settlement of property rights, and partition, and for custody of a minor child. As grounds for divorce, it was alleged that about three years before the parties separated—

“the defendant began a course of unkind and inhuman, harsh and tyrannical, treatment towards plaintiff, which continued until plaintiff was forced and compelled to abandon defendant, as aforesaid; that the defendant often cursed and abused plaintiff and applied to her the vilest and most approbrious epithets without any cause or provocations whatever on the art of this plaintiff; that he was guilty of in-uman treatment and gross excesses at all times; that he would frequently stay out all night and gamble away his money; that he kept company with women of ill repute; that he contracted a contagious and loathsome disease known as syphilis; that he was at all times quarrelsome and abusive; that on the - day of September, 1915, in their home at El Paso, Tex., he boasted of his conduct with other women; that he called plaintiff vile names and threatened to kill her, and offered to strike her with a chair; that he frequently threatened her life, and plaintiff lived in constant fear of her life, and heaped upon her such abuses as to endanger her health and make her life unbearable; that he refused to contribute to the support of plaintiff, and although he made considerable money, he would squander it in gambling and other vices; that he would often curse and abuse plaintiff’s mother and her brother; that his course of conduct towards her generally was of such a nature as to make her life unbearable and to render their further living together as husband and wife insupportable.”

To the portion of the petition quoted, defendant filed the following special exceptions:

“Defendant excepts to the third paragraph for the reason that the same embodies the conclusions of the pleader, indefinite and uncertain, for the reason that it fails to state the time 'and place of the various charges made therein against defendant; defendant excepts to that portion of said paragraph 3 that alleges, on the- day of September, 1915, that defendant boasted of his conduct with other women ; that he called plaintiff vile names, and threatened to kill her, and offered to strike her with a chair, threatened her life, and abused plaintiff in such way as to endanger her health, for the reason it is nowhere alleged that plaintiff feared that defendant would enforce his threats, and failed to allege that she feared defendant, and fails to allege that his threats and conduct did in truth and in fact endanger her life or her health. Defendant excepts to that portion which alleges that defendant failed to support plaintiff for the reason that she was not in need of means of support, also defendant excepts to that portion of said paragraph which alleges that plaintiff squandered and gambled away his money, and that he cursed and abused plaintiff’s mother and brother, because it is not shown that the plaintiff was in need of the money spent by defendant, and that it is not shown that defendant cursed and abused plaintiff’s mother and brother without provocation.”

The overruling of these exceptions is assigned as error. The law is settled in this 'state that, in order to entitle the wife to a divorce upon the ground of cruel treatment, in the absence of physical violence or accusations imputing to her a want of chastity, she must show such treatment as will produce a degree of mental distress which threatens to impair her health. Bush v. Bush, 103 S. W. 217; Eastman v. Eastman, 75 Tex. 473, 12 S. W. 1107; McKay v. McKay, 24 Tex. Civ. App. 629, 60 S. W. 318; Ryan v. Ryan, 114 S. W. 464.

The petition alleges no physical violence towards appellee, nor any imputation of a want of chastity, and the exception should have been sustained which complains of the failure to show any threatened impairment of plaintiff’s health by reason of defendant’s threats and conduct. It is true there is an allegation that defendant “heaped upon her such abuses as to endanger her health,” but it is not stated what the “abuses” were, and there is nothing to show that such “abuses” referred to the threats and conduct against which the special exception was particularly directed.

Another established rule in divorce cases is that the acts complained of must be specifically stated as to the time, place, and material circumstances. General charges of excesses, cruel treatment, and outrages are conclusions of the pleader, and are insufficient upon special exception. The acts relied upon as constituting the same should be stated so that the court may determine whether they constitute such excesses, cruel treatment or outrages, as the statute contemplated. The defendant’s special exception, complaining of the insufficiency of the petition in this respect, was improperly overruled. Wright v. Wright, 3 Tex. 168; Byrne v. Byrne, 3 Tex. 336; Nogees v. Nogees, 7 Tex. 538, 58 Am. Dec. 78; Jones v. Jones, 41 S. W. 413.

It is quite manifest that many of the plaintiff’s allegations are subject to the objection that they embody merely the conclusion of the pleader; that they are indefinite and uncertain in the particulars pointed out by the exception.

Various assignments question the sufficiency of the evidence. In view of a retrial, we refrain from commenting upon the probative force of the evidence.

It is also asserted that the petition fails to sufficiently allege that at the time of exhibiting her petition, the plaintiff had been an actual bona fide inhabitant of the state for a period of 12 months, and had resided in El Paso county for six months next preceding the filing of the suit. The petition is possibly sufficient in that respect, but we suggest that it would be well to follow the language of the statute respecting these jurisdictional facts. By so doing, this question, upon retrial, will be freed of any doubt.

In view of this reversal, it is unnecessary to pass upon the assignment complaining of the court’s action in awarding the custody of the child to Mrs. Bloch.

Error is also assigned to the failure of the court to file findings of fact and conclusions of law. A seasonable request therefor was made and bill of exception taken to the court’s failure to file same. It is true there is a statement of facts in the record, but the evidence is conflicting upon material issues. In such case, it is error to fail to comply with a request for such findings. It is a right granted by the statute, and we are unable to say that the failure to comply with the request is not harmful in such cases. Our views upon this subject are well stated in Kyle v. Blanchette, 158 S. W. 796, and Herman v. Bailey, 174 S. W. 865. See, also, Wandry v. Williams, 103 Tex. 91, 124 S. W. 85; Wood v. Smith, 141 S. W. 795.

Reversed and remanded.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    WELLS FARGO & CO. v. LONG.
    (No. 5742.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 13, 1916.)
    1. Evidence <&wkey;543(4) — Experts.
    In action for value of a lost picture, a witness, whose estimate as to its being worth $250 was based on the fact that an ordinary water color painting of that size would be worth $150, and that the lost picture would be worth $100 more because painted on porcelain and inlaid with mother of pearl, was not qualified sufficiently to make such opinion admissible; it being evident from her testimony that the estimate of $100 difference was merely a guess.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2358; Dec. Dig. <&wkey;543(4).]
    2. Evidence ®=^543(4) — Experts.
    ■Such witness did, however, sufficiently qualify to testify that the painting exclusive of special features was worth $150, it appearing that she had handled water color paintings for two years in the art department of a store, and that she sold water color paintings of that size in ordinary water colors for from $150 to $175 and $200, whether on porcelain or anything.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2358; Dec. Dig. &wkey;543(4).]
    3. Appeal and Error <&wkey;1054(l) — Harmless Error.
    Where trial is before the court, the admission of hearsay testimony does not require reversal, provided there be legitimate evidence sufficient to support the judgment, and the result would have been the same had the hearsay testimony been excluded.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4185; Dec. Dig. &wkey;>1054 (1).]
    4. Appeal and Error &wkey;>10ll(l) — Conflicting Evidence — Question oe Fact.
    Although the testimony of defendant appears more convincing than that upon which plaintiff recovered below, judgment will be affirmed if supported by competent and sufficient evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988; Dec. Dig. &wkey;> 1011(1).]
    Appeal from County Court for Civil Cases, Bexar County; John H. Clark, Judge.
    Action by W. J. Long against Wells Fargo & Co. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellant. Henry, Mc-Closkey & Robertson, of San Antonio, for appellee.
   MOURSUND, J.

Appellee sued appellant for $500, the alleged value of a picture which appellant contracted to transport from San Antonio, Tex., to Santa Anna, Tex., and which was destroyed while in appellant’s possession. Upon a trial, without a jury, judgment was rendered in favor of appellee for $140. This judgment was based upon the testimony of Mrs. Marian A. Sellers, and appellant contends that she failed to qualify sufficiently as an expert to justify the court in admitting and considering her testimony. She expressed the opinion that the picture was worth $250, and there is no doubt that she failed to qualify sufficiently to make that opinion admissible; for it appeared that her estimate was based upon what an ordinary water color painting of that size would be worth, and her estimate of $100 for the difference between an ordinary water color picture and plaintiff’s picture, which she described as a water col- or painting on porcelain, inlaid with mother of pearl. It is evident from her testimony that this estimate of $100 difference was merely a guess. However, as the court only allowed $140, it may be inferred that he discarded this $100 and allowed the value of an ordinary water color painting of the same size. There is no doubt that the witness qualified to give an opinion on the value of water color paintings, which she had handled for two years in the art department of Hummert’s store. She testified this was a water color painting, and that she sold water color paintings of that size in ordinary water colors for from $150 to $175 and $200, whether on porcelain or anything. Afterwards she said:

“A water color painting $125 or $150, ac-. cording to size of it, and it leaves a margin between that $150 and $250 for the porcelain and mother of pearl, and the idea is very hard to produce.”

This amounts to the expression of an opinion ■ that the picture, stripped of the features which she testified made it more expensive, was worth $150. It is true she testified that the value of ordinary water color paintings “is not so much a criterion of the value of this picture”; but it is apparent from all of her testimony that she did not mean by this to say that there was any difference in so far as the painting itself was concerned, but that the plaintiff’s picture, being on porcelain and inlaid with mother of pearl, would be more valuable than if it was an ordinary water color picture. We conclude that we cannot hold that she did not sufficiently qualify to testify to the fact that the painting, exclusive of special features, was worth $150. The court evidently took this view of the matter.

It is also contended that the court erred in permitting Mrs. Sellers to testify that such pictures had only heen made abroad, and were no longer being made anywhere, and had ceased to be made to any extent. The witness admitted that this testimony was hearsay, but it appears that there is testimony from other witnesses to the same general effect. In addition, the trial being before the court, the fact that hearsay testimony was admitted does not require a reversal, provided there be legitimate evidence sufficient to support the judgment, and the result would have been the same had such hearsay testimony been excluded. Erwin v. Archenhold Co., 34 Tex. Civ. App. 55, 77 S. W. 823; Hornberger v. Giddings, 31 Tex. Civ. App. 283, 71 S. W. 989.

It is also contended that the judgment should be reversed for insufficiency of evidence. We have stated the testimony on which the court must have rendered his judgment. After such testimony was given, defendant produced the damaged picture in court, and had four witnesses to testify with reference thereto. All of them testified it was a cheap picture, and not a work of art; and none of their estimates of its value exceeded $20. Two of them were sure it was an oil painting, while one said he could not get at it to tell whether it was an oil painting or water color painting, and the fourth said he could not tell whether it was an oil painting, that it had the appearance of one, but could be either an oil painting or water color painting. They denied it was on porcelain, but their theories differed in regard to how it was made. Some of these witnesses testified to experience which should have well qualified them to make an estimate upon the value of the picture, and their testimony appeals to us as being more convincing than that upon which the court based his judgment. However, we cannot say that the judgment is not supported by competent and sufficient evidence, and we conclude that we should affirm the same.

Judgment affirmed.
      <fcs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes