though it contradicts the consideration named therein.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. 419.] 3. APPEAL AND ERROR 1001-MATTERS REVIEWABLE-VERDICT NOT SUPPORTED BY EV

IDENCE.

Where the verdict of the jury is not supported by the evidence, the case will be reversed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. 1001.]

Appeal from Collingsworth County Court; R. H. Cocke, Judge.

Action by the Blair & Hughes Company against Watkins & Kelley. On motion for rehearing. Reversed and remanded.

R. H. Templeton, of Wellington, and Charles C. Huff, of Dallas, for appellant. J. L. Lackey, of Wellington, for appellees.

HALL, J. A review of the record has convinced us that we erred in affirming the judgment. Appellant company sued Watkins & Kelley, a copartnership, upon an account, for $625. In its amended petition appellant alleged that on the 6th day of November, 1912, plaintiff entered into a written contract with the defendants, Watkins & Kelley, as follows: "Blair Hughes Company:

"Ship to Watkins & Kelley, Dodsonville, Texas, five hundred patterns bagging and ties, $1.25 per pattern, f. o. b. Wichita Falls, Texas. Bill of Lading attached. There are no conditions attached to this sale other than those shown on this order and same is not subject to countermand under any circumstances. Sellers not liable for fulfillment of this order unless signed by purchaser. "[Signed] Watkins & Kelley, Purchaser. "Cheatham, Salesman for Sellers."

[1] Appellant further alleges that it shipped the bagging and ties to Watkins & Kelley consigned to Dodsonville, Tex., and sent the bill of lading with draft attached, as provided in said written order, and that defendants had refused to accept the shipment and pay for same when it arrived at Dodsonville.

Defendants alleged, in substance that on the 6th day of November, 1912, being in immediate need of bagging and ties for use at their gin at Madge, Okl., they met appellant's salesman, Cheatham, in Wellington, Tex., and inquired of him how long it would take said bagging and ties to reach Dodsonville; that Cheatham advised them that his house had the bagging and ties in stock, and could deliver same to defendants at Dodsonville by the following Monday, and that, if defendants would give him the order, he would phone his house and ascertain whether or not the goods were in stock at that time; that Cheatham did communicate by phone with plaintiffs, and afterwards advised defendants that the bagging and ties were in stock and could be shipped immediately; and

that the order was made upon said representations, but that the bagging and ties were not delivered on the following Monday, and were not shipped until November 15th. It is alleged that Cheatham's statements that the bagging and ties were in stock and would be shipped Monday were fraudulently made, and that defendants were induced thereby to give him the order.

Appellant contends that the court erred in admitting in evidence the testimony of appellee Watkins to prove the conversation and agreement with Cheatham before the written order for the goods was signed. The evidence

shows that the order was not signed in Wellington, but was given on the train after Watkins and Cheatham left Wellington for Dodsonville. The admissibility of parol evidence to show fraud in matters of inducement as a defense to an action upon the contract is well settled in this state. The Court of Appeals and the Supreme Court, in United States Gypsum Co. v. Shields, 106 S. W. 724, and 101 Tex. 473, 108 S. W. 1165, discussed this question, and held that, although the contract of sale provides that the written order constitutes the entire contract, and that there are no verbal statements or agreements varying its terms, nevertheless evidence of fraudulent representations not tending to vary the terms of the writing by which the purchaser was induced to sign it is admissible. Commonwealth Bonding & Casualty Co. v. Bomar, 169 S. W. 1060; Coons v. Lain, 168 S. W. 981; New York Life Insurance Co. v. Thomas, 47 Tex. Civ. App. 149, 104 S. W. 1074; Trinity Valley Trust Co. v. Stockwell, 81 S. W. 793; Turner v. Grobe, 44 S. W. 898.

[2] Parol evidence is also admissible to show the real consideration for a written contract, when the consideration itself is not contractual, although the effect of such evidence is to contradict the consideration recited in the writing. Watson v. Rice, 166 S. W. 106.

The jury found, in reply to the first and second questions submitted by the court, that Watkins signed the order with the understanding that the bagging and ties should be delivered not later than Monday following the 6th day of November, 1912, and that such delivery should be made to Watkins & Kelley by that date. There is no testimony whatever in the record upon which to base such a finding.

[3] The remaining fact, upon which appellees defended, is the alleged fraudulent representation by Cheatham that appellants had the patterns on hand at that time in Wichita Falls. This issue was also submitted to the jury and they failed to agree. great many immaterial issues were submitted to the jury; but there being no evidence to sustain the finding that appellants undertook to deliver the goods on or before Monday following the execution of the order, and the jury having failed to agree upon the is

ing therefrom pay himself the amount due from Caylor. It is further alleged that appellant was aware of these conditions at the time the order sued on was presented and at

1. ASSIGNMENTS 100-ORDERS - REFUSAL TO PAY-SUBSISTING EQUITIES.

Where the drawer of an order to pay from funds collected by the drawee was indebted to the drawee and to the payee, but the debt to the drawee was prior to that to the payee, the order was subject to the debt to the drawee and to the drawee's equities against the drawer.

[Ed. Note.-For other cases, see Assignments, Cent. Dig. §§ 177, 180; Dec. Dig. 100.] 2. BILLS AND NOTES 68-ORDERS-ACCEPTThe drawee of an order held not to have accepted the order by the words "the order shall have our attention" at an uncertain time.

ANCE.

3. APPEAL AND ERROR

927-PRESUMPTIONS

-DISMISSAL-GROUNDS. Although a plea that an action is prematurely brought is one in abatement and not in bar, and the suit, if dismissed on that ground, is erroneously dismissed, where there are other grounds for dismissal, in the absence of a record showing to the contrary it will be presumed that the dismissal was upon the valid grounds. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. 927.]

Appeal from Deaf Smith County Court; Jas. A. Hughes, Judge.

Action by H. J. Murrell & Company against S. B. Edwards and another. From a judgment for defendants, the plaintiffs appeal. Affirmed.

Hoover & Dial, of Canadian, and Knight & Slayton, of Hereford, for appellants. W. H. Russell, of Hereford, for appellees.

HALL, J. Appellants instituted this suit to recover of S. B. Edwards and Geo. F. Caylor the sum of $157.46. Appellants alleged that about the 20th day of October, 1913, defendant Caylor executed and delivered to it a certain order on S. B. Edwards, in the above amount, which the said Edwards agreed and became liable to pay, but which he had subsequently refused to pay. By consent of parties the cause of action was dismissed as to all defendants except Edwards. He answered by general and special denial of appellants' allegations and pleaded specially that prior to October 20, 1913, Caylor was indebted to him in the sum of several thousand dollars, and for the purpose of securing the payment of such sum had signed

Ap

had not been a sufficient amount of said collateral collected to pay defendant, and that the suit was prematurely brought. pellant filed a supplemental petition, denying the affirmative matters pleaded by defendant, and upon a trial before the court without a jury judgment was rendered in favor of Edwards that plaintiff take nothing by its suit. The order from Caylor to Edwards is as follows:

"Hereford, Texas, 10/20/13. "Edwards-McDonald Investment Co.: You will please pay to H. J. Murrell & Co., out of commissions due me when collected, one hundred fifty-seven and forty-six one-hundreths ($157.46) dollars. George F. Caylor."

The following day, appellants' attorneys notified Edwards-McDonald Investment Company of the execution of the above order and that it was given in settlement of a suit against Caylor in which garnishment proceedings had been served upon the EdwardsMcDonald Investment Company. In said letter the following questions are asked:

"(1) Is the sum from you to Mr. Caylor due upon commissions owed by you to him? (2) Do you owe him sufficient to insure our payment do not, will you pay our order before that of after he has paid Dr. Caylor $300.00? If you Dr. Caylor?"

The letter also states that the garnishment proceedings were filed before the execution of Dr. Caylor's order and that appellants would not be willing for Dr. Caylor's debt to have precedence.

On the 24th of October another letter was written by appellants' attorneys, notifying Edwards that they desired an answer to their former letter before court convened on the following Monday, in which this language is used:

Caylor and it secures us sufficiently, then there "If you can accept the order given by George will be no need for you to file an answer in the garnishment proceedings and we are willing to pass the matter for one week in order to get fixed."

On the following day Edwards replied as follows:

"We have your favor of the 21st, in which you state that George F. Caylor had given you an order on us for $157.46. I am sure that Mr. Caylor will have sufficient funds coming to him when the deals are closed up to pay you this amount. Dr. Caylor's order was dated ing this before his without his consent. If you ahead of yours and we would not feel like paycan get his consent to let your order precede his it will be entirely satisfactory with us."

Appellants' attorneys immediately secured Dr. Caylor's consent that his order might be

postponed to the one given by George Caylor to appellants. On November 7th appellants' attorneys again wrote Edwards, using this language:

"In order that we may keep our record straight in this matter, we are asking you to favor us with a statement of your acceptance of this order and a statement as to the probable date when the commissions to George Caylor will be due."

[1, 2] The effect of the order dated 10/20/13 was to assign to appellants $157.46 out of any commissions which might be subsequently collected by Edwards for Geo. F. Caylor. This assignment, however, was subject to all the equities existing against the fund in favor of Edwards, and without a subsequent unconditional acceptance by him he had the right to reimburse himself for any amount due him from Caylor before he could be held to pay appellants anything. It appears from their letter of November 7, 1913, that no acceptance of the order had yet been made by Edwards, because in this letter they express

Following this letter, appellants' attorneys wrote Edwards several times with reference to the matter, urging a settlement and a reply to former letters, and nothing was heard from Edwards until July 14th, when he wrote as follows:

"I have your several letters and ask you to pardon my delay in answering. The fact is that I have had nothing definite to write. Since last fall we have had three of the deals which Caylor was interested in to fall down, and which will very materially affect the amount of his commission. We have been unable so far to sell any of our vendor's lien notes."

Later, on November 17, 1914, Edwards wrote appellants' attorneys that three of the trades in which Mr. Caylor was interested had not been consummated and that he would lose, on the securities taken from Caylor, several hundred dollars, regretting his inability to save appellants anything out of the commissions. This suit was then instituted, the above orders and correspondence introduced in evidence, together with the oral testimony of appellee Edwards, in substance as follows:

"About the time the order in question was given, George F. Caylor owed me about $3,000. Since I received the order I have collected about $1,000 on these notes. The notes were in our name, but George F. Caylor was interested in some commissions included in the notes. The $1,000 collected represents the amount of the commissions from the notes, which would have belonged to George F. Caylor if he had not been indebted to us. He still owes us about $2,000. $1,000 was collected after the alleged acceptance of the order in question. There has been enough collected from the commission notes belonging to George F. Caylor to have paid the order in question if George F. Caylor had not owed anything. These collections of George F. Caylor's commission were made by me in September, 1914. I have never paid any part of the order sued on."

ance. Edwards' reply is that the orders should have his attention immediately upon the sale of the notes. The rule is that when an acceptance is evidenced by separate writing its terms must be so clear as not to admit of doubt.

"Thus, where the drawer advised the drawee of the bill by letter, and the drawee replies that the bill shall have attention,' it was held that these words, taken by themselves, were not sufficiently positive and unequivocal to amount to actual acceptance, but that if it could be shown that such words were used for that purpose, and with that effect in dealings between the parties, then they might be regarded as an acceptance." 1 Parsons on Notes and Bills (2d Ed.) 286; 7 Cyc. 765 (2).

The record fails to show the dismissal of the garnishment proceedings against Edwards, neither is the issue of estoppel raised by the pleadings.

[3] Appellant insists that the court should have sustained its exceptions to appellee's plea, alleging that the suit had been prematurely filed. That the action has been prematurely brought is matter which should be pleaded in abatement rather than in bar; but if there was no acceptance of the order it is of no consequence whether the facts pleaded tending to show that the action was prematurely brought were or were not true. The trial judge filed no findings of fact or conclusions of law. In this state of the record, we do not know that he based his judgment upon the facts alleged by appellee showing that the suit had been prematurely brought, and in support of the judgment we must presume that the decree is based upon appellee's contention that the order had never been accepted by Edwards. Walker v. Cole, 89 Tex. 323, 34 S. W. 713; O'Fiel v. King, 23 S. W. 696.

The judgment must be affirmed.

no authority was extended in any case to an agent to operate outside of his county. Held,

V. BLACK. (No. 1492.)*

(Court of Civil Appeals of Texas. Texarkana. July 1, 1915. Rehearing Denied Oct. 7, 1915.)

custom was observed when such agent was appointed, but had a right to determine the question from the correspondence, which correspondence did not limit his authority to H. county. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 103; Dec. Dig. 78.1

Error from District Court, Panola County; W. C. Buford, Judge.

Action by S. C. Black against the International Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Locke & Locke, of Dallas, and Brooke & Woolworth, of Carthage, for plaintiff in erJno. W. Scott, of Marshall, and Frank Lawson, of Carthage, for defendant in error.

The question for an appellate court is not whether findings of the trial court complained of are supported by a preponderance of the evidence, but whether or not there is any evidence to support them.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3979-3982, 4024; Dec. Dig.

1010.]

WILLSON, C. J. The suit was by defendant in error Black on a policy issued, he alleged, by plaintiff in error through its agent A. C. Littlejohn November 5, 1912, insuring his (Black's) dwelling house, situated on a farm in Panola county about 18 miles south

Where a party dealing with an insurance agent authorized to issue policies and having policies in his possession did not know of any restriction on his authority with respect to the territory in which he might write insurance or the classes of property which he might insure, he had a right to assume that the agent was authorized to issue the policy actually issued, and the insurance company was estopped from asserting the contrary.

[Ed. Note. For other cases, see Insurance, Cent. Dig. 103; Dec. Dig. 78.]

4. ESTOPPEL 114-NECESSITY OF PLEADING -LACK OF OPPORTUNITY TO PLEAD.

Plaintiff sued on a fire insurance policy, alleging that it was issued by defendant through its agent L. The answer denied that L. was defendant's agent and that he had authority to issue any such policy. Plaintiff showed that L. was defendant's agent to issue policies and that he had no knowledge of a limitation on L.'s authority as to the classes of property on which he could write insurance. Held, that the estoppel against defendant as to the agent's authority was available to plaintiff, since, while the general rule is that facts relied upon to establish an estoppel must be pleaded, such rule does not apply where the party asserting the estoppel has not had an opportunity to plead it. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 304; Dec. Dig. 114.]

sum of $2,000, and the contents thereof in the sum of $1,000, against loss by fire. The house and its contents were destroyed by fire March 12, 1914, while the policy was in force, it was alleged. Plaintiff in error denied that it had ever issued such a policy as the one sued on, and denied that said Littlejohn was its agent. The trial was by the court without a jury, and resulted in judgment in favor of defendant in error for $3,000, interest and costs.

That plaintiff in error on June 22, 1911, authorized Littlejohn to act as its agent at Marshall and furnished him the blank forms of policies, etc., it expected he would need in the transaction of its business, was not disputed. That the policy issued by him to defendant in error was one of plaintiff in error's policies was disputed, but we do not understand plaintiff in error to be in the attitude of questioning the sufficiency of the evidence relied upon to support the finding involved in the judgment, that the policy was issued on its behalf by Littlejohn as its agent. The contention of plaintiff in error is that the trial court erred in not render

EXTENT OF AUTHORITY.

An insurance company's agent at M. in H. county, in applying for appointment, stated that the class of risks he would write would be among the best planters in H. county. The company replied that if he would take the agency they would endeavor to care for his country business if he would also give them some good city business. In an action on a policy issued by him covering farm property in another county about 18 miles from M., the company's secretary testified that the authority of agents was limited to their own town and its suburbs, that if the authority was greater than this special permission would have to be given, and that