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cluded that the judgment of the trial court | ing in the charge that Nation was the agent should be reversed. of defendant and in instructing them that the [6] The trial court instructed the jury as act of Nation in refusing transportation from follows:

"If you find from the evidence that plaintiff bought from defendant a round-trip ticket from Eagle Lake to Victoria and return, with transfer coupons part thereof for carrying holder of such ticket from the Gulf, Colorado & Santa Fé Railway Company depot in Wharton, Tex., to the Southern Pacific depot in that city, and on the plaintiff's return from the Southern Pa

depot to depot to plaintiff was chargeable to defendant. Again, by this charge the jury is told that, if they should find from the evidence that as a result of the refusal to transfer plaintiff she was made sick, they should find from the evidence in calculating damages, if any, doctor's bills.

In our opinion, neither the pleadings nor the evidence justified the court in instructing the jury that in finding their verdict they should consider "doctor's bills." There is no allegation that plaintiff paid the sum claimed as "doctor's bill" to any one, or that she assumed to pay any such bill, nor is there any allegation that the amount named as being due for doctor's bills and medicine was a reasonable charge for such services and medicine. The doctor to whom plaintiff said she owed the bill testified that he was never called by plaintiff to attend her on account of any sickness contracted by her in Febuary, 1916; that he never knew of any such sickness and has never made any charge against her for any such service. Defendant objected to the charge in due time and presented special charges to correct the same, which were by the court refused and the objections overruled. We think it clearly apparent that the court erred in giving the

cific depot in Wharton, Tex., to the Gulf, Colo-
rado & Santa Fé Railway Company depot in
that city, and that such transfers were to be
made from and to such depots, respectively, in
Wharton, Tex., upon the surrender by plaintiff
to J. C. Nation of the transfer coupons attach-
ed to the ticket, and you further find from the
evidence that said J. C. Nation refused to carry
and transfer the plaintiff on such transfer cou-
pon, you will find for the plaintiff in such sum
as you find from the evidence were the damages
sustained by the plaintiff by reason of such re-
fusal of said J. C. Nation's bus line to carry
her on said transfer coupon or coupons; and
if you find from the evidence that as a result
of the refusal to so carry the plaintiff she was
made sick, you should find from the evidence
in calculating damages, if any, doctor's bills,
value of time lost in her business as a teacher,
and also, if you find from the evidence failure
of defendant to provide proper transfer facili-
ties at Wharton, and that such failure caused
embarrassment, mental disturbance, or physical
annoyance to plaintiff, you can, as actual dam-charge.
ages, find such amount as you find from the
evidence is a reasonable compensation to plain-

tiff therefor."

This charge was objected to by defendant at the proper time, and it now by several assignments insists that the giving of such charge was reversible error.

[7, 8] We think the assignment should be sustained. The plaintiff alleged that J. C. Nation was the agent, servant,, and employé of defendant, whose duty it was to transfer passengers holding transfer coupons issued

There may be other errors complained of by appellant, but, as they would not likely occur upon another trial, we refrain from further discussion of them.

For the reasons pointed out, the judgment is reversed, and the cause remanded. Reversed and remanded.

by defendant from one depot in Wharton to D. S. CAGE & CO. et al. v. SOUTHERN

RICE GROWERS' ASS'N et al.
(No. 7769.)

(Court of Civil Appeals of Texas. Galveston. Jan. 2, 1920. Rehearing by Crosby Mercantile Co. Denied Jan. 22, 1920.)

CHATTEL MORTGAGES 117

PARTICULAR

the other, and that she presented to said J. C. Nation the transfer coupons issued and sold to her by defendant, and that said Nation refused to transfer her from depot to depot, to her damage, etc. Defendant specially denied that J. C. Nation was its agent. The only testimony even remotely tending to show that Nation was the agent of defendant was that of plaintiff, and all of her testimony relative thereto was that when she approached Nation on the 24th day of February, 1916, at Wharton, and asked him if he was the railroad transfer man, he said he was. Nation testified that he never told plaintiff that he was the railroad transfer man; that he was not the agent of the defendant for any purpose at the time plaintiff approached him, and had never been such agent. It is there- Appeal from District Court, Harris Counfore apparent that the court erred in assum-ty; J. D. Harvey, Judge.

CONTROLS OVER GENERAL DESCRIPTION. In a mortgage on entire crop of 130 acres of rice to be planted on the B. farm, the particular description of the farm is controlling over the general description by number of acres, so that the mortgage would not include 30 acres planted on the J. farm, with the 100 acres actually planted on the B. farm, particularly where mortgagor was not contemplating planting the 30 acres when executing mortgage.

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

(218 S.W.)

Suit by the Southern Rice Growers' Asso- [ The facts are undisputed. The fund in ciation against D. S. Cage & Co. and others. controversy is the proceeds of the sale of Trial without a jury resulting in judgment 329 sacks of rice, raised by defendant Dalin favor of the Crosby Mercantile Company, quist during the year 1917 on 130 acres of establishing a right to all the fund from land in Harris county; 100 acres of the sale of a quantity of rice, except a sufficient land being on the farm of John Bloom, and amount to pay a claim of intervener, Amos 30 acres on the adjoining farm of Gus JohnFisher, and ordering costs and attorney's son. One hundred sacks of this rice was fees paid out of the fund in controversy, and grown on the Gus Johnson farm, and 229 the defendants Dalquist, D. S. Cage & Co., sacks on the John Bloom farm. and F. G. Gillette appeal. Reversed and rendered.

On April 16, 1917, E. T. Dalquist and wife, Stella Dalquist, for the purpose of securing

Pleasant F. Graves and H. L. Livingston, the Crosby Mercantile Company in an inboth of Houston, for appellants.

Rowe & Kay, of Houston, for appellees.

debtedness owing by them to said company on a note and open account in the sum of more than $2,000, executed and delivered to said company a mortgage upon their crop, which they described as follows:

Bloom, also all our crop of cotton, consisting
John Bloom about 11 miles S. E. of Crosby, in
of ten acres, above crops on land rented from
Harris county, Texas."

E. T. Dalquist had rented from John Bloom for the year 1917 about 150 acres of his farm in Harris county, and at the time this mortgage was executed contemplated planting 130 acres of said land in rice. There is some conflict in the testimony as to wheth

PLEASANTS, C. J. This suit was brought by the Southern Rice Growers' Association to have determined the respective interests "Our entire crop of rice consisting of about of all adverse claimants of a fund in the (130) one hundred and thirty acres, now in prohands of the plaintiff arising from the process of being planted on land rented from John ceeds of the sale of 329 sacks of rice, turned over to it, for sale on commission by the defendant E. T. Dalquist. The claimants of an interest in the fund who were made parties defendant, in addition to defendants E. T. Dalquist and wife Stella Dalquist, were D. S. Cage & Co., F. G. Gillette, and the Crosby Mercantile Company. Amos Fisher intervened in the suit, claiming an interest in the fund. The defendant Crosby Mercantile Com-er he did plant 130 acres of this land in rice, pany claimed all the fund under a mortgage but the great weight of the evidence sustains executed by defendants Dalquist and wife the conclusion that he did plant 130 acres in upon the crop of rice raised by them during rice on said farm, but only got a stand on, the year 1917 upon 130 acres of land in Har- and cultivated 100 acres of rice on that farm. ris county, described in the mortgage as be- Subsequent to the execution of this mortgage ing upon the John Bloom farm. The defend- he rented 30 acres of land on the Gus Johnant Cage & Co. claimed $289.65 of said fund son farm near or adjoining the John Bloom under an assignment from the defendant E. farm. He planted this 30 acres in rice, and T. Dalquist. The defendant Gillette also on this crop executed a mortgage to secure claimed $110.16 of said fund under an assign- the intervener, Amos Fisher, in the payment ment from said Dalquist. The intervener of a note for $100. He delivered the rice Amos Fisher claimed under a mortgage from from both farms to the plaintiff for sale, defendant Dalquist, upon the rice grown up and the fund in controversy, which was paid on 30 acres of the 130 acres of land cultivat-into the registry of the court by plaintiff, is ed by him during the year 1917, which was the proceeds of said sale. After the rice was not on the John Bloom farm.

delivered to plaintiff, Dalquist assigned to defendants Cage & Co. and F. G. Gillette the respective amounts claimed by them, to be paid from the proceeds of the sale of the rice grown on the Gus Johnson 30 acres. These assignments were made in satisfaction of indebtedness due by him to said defendants.

The trial in the court below without a jury resulted in a judgment in favor of the defendant Crosby Mercantile Company, establishing the right of said defendant to all of the fund, except a sufficient amount thereof to pay the claim of the intervener, Amos Fisher, who was adjudged to have a first lien upon the rice raised on the 30 acres of We cannot agree with the learned trial land found not to be on the John Bloom judge in his holding that the mortgage exfarm. The costs and attorney's fee allowed ecuted by Dalquist and wife covered the plaintiff were ordered paid out of the fund crop raised by him on the Gus Johnson land. in controversy, and the remainder of the It seems to us that by its terms it is restrictfund was ordered paid to the Crosby Mer-ed to the rice raised on the John Bloom cantile Company and the intervener, Amos farm. It is true that it describes the mortFisher, as above stated.

The defendants Dalquist, Cage & Co., and F. G. Gillette have each appealed from the Judgment.

gaged property as "our entire crop" of 130 acres, but it expressly states that the crop is to be planted and grown on the John Bloom farm, and we are of opinion that this

definite, particular description should control the more general description. If, however, this conclusion is not sound, and it should be held that the description is ambiguous, the undisputed evidence shows that the crop on the Johnson farm was not intended to be included in this mortgage. At the time the mortgage was written Dalquist was not contemplating planting a rice crop on the Johnson 30 acres, but did intend to plant 130 acres on the Bloom farm.

GRAVES, J. The judgment appealed from by the insurance company in this cause was a recovery upon a fire insurance policy issued by it upon the household furniture of the appellee, which contained what is known as the standard cancellation clause, as follows:

"This policy shall be canceled at any time at the request of the insured; or by the company by giving five days' notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company rethis policy is canceled by this company by givtaining the customary rate; except that when ing notice it shall retain only the pro rata premium."

Upon the issue of a cancellation of the policy or not, Mr. McWilliams, the appellee,

Upon these facts the Crosby Mercantile Company acquired no lien by its mortgage upon the rice raised on the 30 acres on the Johnson farm, and was entitled to no part of the proceeds of the sale of that rice. It follows from these conclusions, that the judgment of the court below should be reversed, and judgment here rendered denying the Crosby Mercantile Company any part of the proceeds of the sale of the 100 sacks testified: of rice raised on the Johnson farm, and "Along about the 1st of August, 1917, I had awarding the balance of such proceeds, after a conversation with Mr. Cooley with reference the payment of the amount adjudged the in- to this policy. He came out to my house betervener, Amos Fisher, to the appellants D. tween 8 and 9 o'clock in the morning, and I S. Cage & Co. and Fred G. Gillette in pro-woke me up, and we had the conversation on was asleep at that time, and Mrs. McWilliams portion to their respective claims; and it the porch of my residence, right at the front

has been so ordered.

INSURANCE CO. OF NORTH AMERICA v.
McWILLIAMS. (No. 7761.)

(Court of Civil Appeals of Texas. Galveston.
Nov. 26, 1919.)

INSURANCE

246-INSURED NOT ENTITLED TO RECOVER WHERE POLICY CANCELED BY AGREEMENT WITH WAIVER OF TENDER OR RETURN

OF UNEARNED PREMIUM.

Where fire policy with standard cancellation clause was canceled by insurer, insured who, upon receiving notice of cancellation, immediately acquiesced therein, and surrendered policy to agent without demanding refund of the old premium, depending upon agent's assurance that he would procure other insurance and apply overpaid premium upon new policy, could not recover upon the old policy, though agent failed to procure new one; the policy having been canceled by mutual agreement, and insured having waived the tender or return of unearned premium as a condition precedent to cancellation.

door. I got up and dressed, and went out and
talked with Mr. Cooley. My wife said that Mr.
Cooley was at the door and wanted to see me,
and I got up and went to the door, and said,
'Good morning,' and shook hands with him, and
he said that he had received a letter from the
insurance company in which I was insured,
among a number of others, to cancel the pol-
icy. He had the letter with him, and I looked
at it-just glanced at it. He showed me the
letter, and I just glanced at it, and I said,
'Here, I want some insurance;' and he said,
'Don't worry; I will carry you; I will transfer
you into another company;' that is what he
said. On that ground I went and got my pol-
icy and handed it to him, but I never did re-
ceive another policy of insurance from him or
any one else covering my household furniture.
The furniture was destroyed by fire on the 11th
day of September, 1917, between 6 and 7
o'clock in the evening. That would make it
about one month after the conversation I had
with Mr. Cooley with reference to the policy-
about one month and eleven days. I figure it
was about the 1st of August when he talked to
me. Mr. Cooley had the policy I surrendered
to him; that is, I turned it over to him. I
haven't got it myself, and have never seen it
since that day. At the time Mr. Cooley came
out to the house and I had the discussion with

Appeal from Harris County Court; Walter him about taking up the policy, nothing was E. Monteith, Judge.

Action by D. T. McWilliams against Insurance Company of North America. Judgment for plaintiff, and defendant appeals. Revers

ed and rendered.

Love, Wagner & Wagner and Elwood Fouts, all of Houston, for appellant.

said about the premium on the policy which I delivered back to him; there was not a word said about that at all. The first time there was any mention made about the unearned portion of the premium on this policy was about a week after the fire."

On cross-examination he further said: "Mr. Cooley told me that the company had inAtkinson & Atkinson, of Houston, for ap structed him to cancel the policy-that was my pellee. understanding. After he told me he would put

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

(218 S.W.)

me in another company I surrendered the pol- [ of any claim to the tender or return of such icy to him. I went in and got it and gave it to premium as a condition precedent to the canhim. It was in the bedroom, and I went and cellation. got it and gave it to him. It was my understanding the policy was to be canceled and an

one.

other policy taken out in another company. Mr. Cooley told me that he would get me another policy in another company, and it was my understanding that he was going to apply the unearned premium of this policy to the new I thought that that was later than the 18th day of July, but that might be the right date. The fire occurred on the 11th of September. In the meantime I did not go down to see if he had secured another policy for me, because I took his word that he would send me the policy the same as he had always done. I relied on him to secure the other insurance."

Mr. Cooley was the company's agent, and his version of the matter was this:

"About the 18th of July, last year, I received notice from the Insurance Company of North America to cancel this policy. Mr. McWilliams had this policy at that time. We received notice to cancel somewhere between 30 and 40 policies for different reasons for this company on property at the Heights. They were drawing in their lines, and wanted to reduce the amount of their insurance at the Heights, and this was one of the number, and I took the letter signed by the special agent of the company to Mr. McWilliams at his home, and told him about it, and gave him the letter in his hand to read, so he did not have to take my word for it; it was the company's instructions. He read the letter. He acceded to the request for cancellation. He remarked, 'Well, I would not like to be without insurance.' He went right in the house and got me the policy. I did not go in the house; I remained on the gallery. He went in and got the policy, and cheerfully gave it to me for cancellation. He told me he would like to be insured and was to

come in our office; he goes by there every day to work; he was to come in our office, and see what we could do for him. I told him I would see. I told him I would see whether or not there was some other company in our office that could write it for him.

"He did not make any demand for the unearned premium. It was understood he should come in our office, when he would either have credit or get his unearned premium. It would be there, of course, at his disposal. He could have credit on the other insurance if it was issued; he could get his money. The credit stands there now. He agreed to do that."

We think the position was correct, and

should have been sustained; there is no room for interpretation or difference as to what transpired here; both parties plainly state it. Mr. McWilliams received the company's notice of cancellation, immediately acquiesced therein, and surrendered the policy for such disposition without demand for a refund of the overpaid premium, accepting instead and depending wholly upon the agent's assurance about procuring other insurance for him, and understanding at the time that this balance due him would be applied upon his new policy.

Polemanakos was ad

Under facts not so strong in favor of cancellation, and construing the same standard provision relating to it as is here involved, our Supreme Court, through the Commission of Appeals, in the very recent case of Insurance Co. v. Polemanakos (Com. App.) 207 S. w. 922, decided since the judgment herein was rendered, and of which accordingly the court in trying this cause did not have the benefit, held that neither tender nor payment of the unearned premium was a necessary prerequisite to cancellation, properly given notice alone being sufficient, and that Polemanakos agreed to the cancellation and waived repayment of the unearned premium. There was not even a surrender of the policy in that case at all. vised by the agent over the telephone that the company had canceled his insurance, and was asked to surrender the policy. He said, "All right," that he would procure other insurance, which he later in fact did; but he had subsequently occurred, brought his suit never gave up the policy, and, after the fire to recover thereon. The court in its opinion reviews the authorities on the subject, including those in Texas holding a contrary doctrine-upon which the appellee here relies-and nothing further is deemed necessary in this case than a reference to that discussion; but it may be well to likewise say here, as the court did in the case referred to, that if there be doubt as to whether a tender or repayment of the unearned premium was a necessary condition precedent to cancellation, it would not control the result in this instance, because the facts recited clearly show an agreement to cancellation and a waiver of the return at that time of the premium. See, also, Miller v. Fireman's Ins. Co., 54 W. Va. 344, 46 S. E. 181; Hillock v. Traders' Ins. Co., 54 Mich. 531, 20 N. W. 571. Since these conclusions determine the mer

He further testified that the policy was canceled and returned to the company's general office in Atlanta, Ga., on the date of its cancellation, which was July 18, 1917. In this state of the evidence the appellant contended below that judgment should have gone in its favor, in that the uncontroverted proof showed a cancellation by mutual agree-its of the cause, other questions presented bement, a voluntary surrender of the policy for that purpose by the appellee without payment to, or demand by, him for the unearned premium, as well as a waiver upon his part 218 S.W.-6

come immaterial; the trial court's judgment is reversed, and the cause is here rendered in appellant's favor.

Reversed and rendered.

STATE BANK OF COMMERCE v. COX.
(No. 8240.)

(Court of Civil Appeals of Texas. Dallas.
Jan. 3, 1920. Rehearing Denied
Feb. 7, 1920.)

DEATH NOT COMMUNITY PROPERTY THOUGH
HUSBAND HAD PREPARED LAND.

Where a husband prepared rented land for cotton crop, and, after his death before planting, the wife procured the seed, planted the land, cultivated and raised the crop, the crop is not a part of the community property, and hence a bank in which the proceeds of the crop were deposited by the wife cannot apply same to discharge of a community note.

Tex., for the year 1917, and at the time of his death had sowed 25 acres of wheat and oats and had 91 acres of land plowed, bedded, and prepared for planting in cotton. Appellee purchased cotton seed after the death of her husband, and, together with her children and some hired help, planted, cultivated, gath1. HUSBAND AND WIFE 249-CROP PLANT-ered, and marketed the cotton crop, including ED AND RAISED BY WIFE AFTER HUSBAND'S the cotton seed raised on said rented premises for the year 1917, and deposited the proceeds arising from the sale thereof with appellant bank. In addition to depositing her cotton money in said bank, she deposited therein $75, which she had received from the Odd Fellows Lodge, and $991, the proceeds of a Woodmen insurance policy made payable to her. She had drawn out of said bank on September 15, 1917, her balance, which she says was $153.07. The money deposited by her in the bank thereafter, amounting to more than $2,000, came from the sale of the cotton and cotton seed raised on said rented premises during the year 1917. The appellee harvested the wheat and oats crop, which had been sowed before her husband's death, and applied practically all of the proceeds arising from the sale thereof, which was of small amount, to the support of herself and children, and to the employment of a man to help make the crop. None of it was deposited in appellant's bank. At the date of the death of appellee's husband, some farming implements, live stock, and perhaps some other personal property were on hand; but it was of such character that all of it was exempt from execution or forced sale by the Constitution and laws of this state, and

2. HUSBAND AND WIFE 264 - EVIDENCE INSUFFICIENT TO SHOW THAT WIDOW'S BANK

DEPOSIT WAS COMMUNITY PROPERTY.

Where a bank which held community notes executed by the deceased husband, applied after his death to payment of notes a deposit standing in the name of the widow, evidence held insufficient to show that the sum of $60 which was the first item in the widow's passbook was part of a deposit standing in the name of the husband at the time of his death; hence direction of a verdict for the widow was not improper on the ground that such sum was community property.

Appeal from District Court, Hunt County; A. P. Dohoney, Judge.

Action by Mollie A. Cox against the State Bank of Commerce. From a judgment for plaintiff, defendant appeals. Affirmed.

T. W. Thompson and Clark & Sweeton, all none of the proceeds arising from the sale of Greenville, for appellant.

B. Q. Evans, of Greenville, for appellee.

thereof by appellee was deposited in appellant's bank. A bank or passbook furnished appellee by appellant showed a deposit of TALBOT, J. Appellee, Mollie A. Cox, is $60.95, and appellee testified in reference the surviving wife of C. B. Cox, who died thereto that, if she understood the book corMarch 23, 1917. She and her deceased hus-rectly, the amount of that item was in the band were married in 1898 and had five bank at the time her husband died. said: children, the oldest being 19 years of age at the trial of this case. At the time of his death, deceased, C. B. Cox, owed appellant three notes, as follows, to wit: One in the sum of $550 of date September 30, 1916, due

October 1, 1917, bearing interest at 10 per cent. from maturity; another in the sum of $375 of date October 18, 1916, due October 15, 1917, bearing 10 per cent. interest from date; and the third in the sum of $325, of date December 1, 1916, due November 1, 1917, with interest at 10 per cent. from maturity. The three notes and interest thereon aggregated the sum of $1,287.50 on the 1st day of November, 1917, and were community obligations of the appellee and her deceased husband. The deceased, C. B. Cox, had rented the Sayles farm, located about one mile from Commerce, Hunt county,

She

"It is styled there in the book, 'Mrs. Mollie A. Cox, March 26th, 1917, $60.95, and that is what he had left in the bank, I suppose, and they transferred it from him to me."

On or about November 1, 1917, appellee demanded of appellant her balance. In response to said demand, appellant paid the three notes out of the funds on deposit with it, charged the same to the account of appellee, and delivered said three notes duly canceled, together with the sum of about $400, to appellee. Appellee at no time consented to the payment of the notes out of said funds, and on the 6th day of November, 1917, filed this suit against appellant for converting said sum of $1,287.50 of her money, alleging that the money was her separate property and not subject to the payment of

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

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