Mutual Ben. Life Ins. Co. v. Collin County Nat. Bank.

• Decision Date: 18 December 1897
• Parties: MUTUAL BEN. LIFE INS. CO. v. COLLIN COUNTY NAT. BANK et al.
• Court: Texas Court of Appeals

43 S.W. 831

MUTUAL BEN. LIFE INS. CO. v. COLLIN COUNTY NAT. BANK et al.

Court of Civil Appeals of Texas.

December 18, 1897.

Appeal from Collin county court; J. M. Pearson, Special Judge.

Action by the Collin County National Bank against Jonathan Woodall and the Mutual Benefit Life Insurance Company on a note. A judgment was rendered in favor of plaintiff against Woodall and in favor of Woodall against the insurance company. The insurance company appeals. Reversed in part.

G. R. Smith and J. R. Evans, for appellant. G. E. Carpenter and Garnett, Jones & Merritt, for appellee.

Reasons for Reversal.

TARLTON, C. J.

On December 1, 1893, Jonathan Woodall executed a promissory note, payable to the order of C. C. Foote, in the principal sum of $267.82, due September 1, 1894. Before maturity, Foote indorsed this note to the Collin County National Bank, which, on December 15, 1894, brought this suit against the maker and indorser to recover the amount of the note. Woodall pleaded a failure of consideration, in this: that the note was executed to C. C. Foote, as agent of the Mutual Benefit Life Insurance Company, for the first premium of a policy in that company for $5,000, alleging that the policy was never delivered. He alleged that Foote was, at the date of the execution of the note, the agent of the insurance company, with full authority to bind it; that as such agent Foote solicited the defendant to take out a policy in the sum of $5,000; that to this end an application was at the time written out; that Foote, as the agent of the company, executed to the defendant a receipt for the note, showing it to be in consideration of the insurance policy referred to; that when the transaction occurred the parties were in the country about 12 miles from McKinney; that it was agreed between them that Woodall was to execute and deliver to Foote, as such agent, the note in question; that Foote would execute the receipt above mentioned; that thereafter Woodall would go to McKinney, and be examined by the company's physician at McKinney, and, if such examination was satisfactory, that the insurance company was to execute and deliver to the defendant the policy for $5,000, when the note would become a binding obligation; that, if the examination was not satisfactory, the note should be canceled; that within the time agreed upon the defendant made several trips from his home to McKinney for examination by the physician; that he was unable to find Foote; that he thereafter wrote a letter to the insurance company, proposing to stand such examination, and to carry out his part of the contract; that the company in reply notified defendant that it would send its state agent, H. A. Craycroft, to attend to the matter; that Craycroft subsequently caused another agent to go to the home of the defendant, and that this agent, whose name is unknown, directed the defendant to go for examination to Dr. W. T. Wiley, a physician at McKinney, and that upon satisfactory report the policy for $5,000 should be at once issued to the defendant; that, in accordance with this...