San Antonio Life Ins. Co. v. Griffith

• Decision Date: 04 March 1916
• Docket Number: (No. 8327.)
• Citation: 185 S.W. 335
• Parties: SAN ANTONIO LIFE INS. CO. v. GRIFFITH.
• Court: Texas Court of Appeals

185 S.W. 335

SAN ANTONIO LIFE INS. CO. v. GRIFFITH.

(No. 8327.)

Court of Civil Appeals of Texas. Ft. Worth.

March 4, 1916.

Rehearing Denied April 8, 1916.

Appeal from District Court, Wichita County; E. W. Nicholson, Judge.

Action by W. L. Griffith against the San Antonio Life Insurance Company. Judgment for plaintiff for part of the amount sued for, and defendant appeals, and plaintiff files a cross-appeal. Modified by reducing the amount, and affirmed.

John F. Onion, of Dallas, and Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. Chauncey & Davenport, of Wichita Falls, for appellee.

BUCK, J.

Suit was brought by W. L. Griffith, appellee, against the appellants, San Antonio Life Insurance Company and Harry L. Seay, liquidating agent of said company for damages on account of the alleged breach of a contract by the San Antonio Life Insurance Company, claiming damages and asking for judgment against appellants in the sum of $1,021. Appellee alleged in his petition that on or about August 19, 1914, the San Antonio Life Insurance Company entered into a written contract with him, employing him as an agent of said company to solicit and write applications for life insurance in defendant company, and that plaintiff —

"was to receive compensation for services rendered and to be rendered the said defendant, in commissions hereinafter set out; that said written contract provides when plaintiff should write an application for a policy in said company, and that if said first year's premium was not paid in cash, then said plaintiff was authorized to accept notes from the applicant for said premium on the said policy, which note or notes were to be made payable to plaintiff at San Antonio, Tex., and to be indorsed by plaintiff, and to be immediately forwarded by plaintiff to the defendant company at its home office, and which notes were not to run for a longer period than six months from date thereof; that in the event plaintiff should forward any note or notes which he might receive from applicants for policies in said company, to cover their first year premiums to said defendant, and if same were approved and accepted by the company, then it was agreed between the plaintiff and said company, in said written contract, that said defendant company would handle said note or notes so forwarded and accepted. If it should be found by the court that the word `handle,' as used in said written contract of employment, is ambiguous and is uncertain in its meaning, then plaintiff says that it was then and there understood by plaintiff and said defendant company that when said defendant approved and accepted note or notes so forwarded by plaintiff, as hereinbefore alleged, then said defendant would immediately advance to plaintiff in Wichita Falls, Wichita county, such sum of money as would equal the amount of commissions to which plaintiff was entitled, as hereinafter set out in said written contract or contracts," etc.

Plaintiff further alleged that he was to receive 75 per cent. commission on all business which he wrote for appellant company, except as to 5 policies written, upon which he was to receive 70 per cent. of the first year's premiums. Plaintiff alleged that he had written some 14 policies for defendant company, and had taken notes in payment thereof, and forwarded the same to defendant company at its home office, and that said notes had been approved and accepted by said defendant company —

"that said defendant company complied with its said contracts, and advanced to plaintiff the sums of money to which he was entitled until on or about the 1st day of November, 1914, at which time said defendant company then and there failed and neglected to advance to plaintiff the sums of money to which he was entitled under said contract, and that, plaintiff then and there being without any funds, and being unable to obtain any from any other source, with which to meet the necessary expense of soliciting and writing applications for insurance in said defendant company, plaintiff was then and there prevented, by the failure of the defendant company to make said advances to which he was entitled under said contracts, from soliciting and writing applications for insurance in said company from on or about November 1, 1914, to November 15, 1914, and from December 18, 1914, to December 31, 1914, and during the entire month of January, 1915, and from February 1, 1915, to February 15, 1915 — all of which facts were well known to said defendant company at that time."

He further alleged that:

"He was earning, and his time was reasonably worth, the sum of $193.25 per month, and he would have earned said amount per month during the time which he lost if the defendant company had made advancements to plaintiff as it had contracted to do."

He further alleged that for some time prior to the execution of the contracts pleaded he had been engaged in the business of fire insurance and real estate in Wichita Falls, and that in order to accept the terms of employment with defendant company, he was forced to give up said business, and that, because of the general business depression prevailing, he was unable to sell the same for any sum of money and was forced to give said business away. He alleged that said business and office fixtures were reasonably worth $538, for which he sued. He further claimed damages for the 2½ months alleged to have been lost by reason of defendant's failure to furnish money in the way of advancements, for which he asked judgment in the sum of $483. He further alleged that defendant was due him the further sum of $180.51 on the first year premium notes, which were approved and accepted by the defendant company, for which he prayed judgment. A jury having been waived, the court rendered judgment for plaintiff in the several amounts hereinafter mentioned, to wit, for loss of time, $482.50, for balance due plaintiff on first year premium notes, $180.51, making a total of $663.01, and denied judgment for the loss of the business and office fixtures as claimed. Defendant appeals, and plaintiff, by cross-assignment, alleges error to the action of the court in denying his claim for damages as to his insurance and real estate business and office fixtures.

It appears that plaintiff, at the instance of defendant, went to San Antonio to discuss the matter of his engagement with said company, and explained to the president of said company that he was without funds to carry on the business, and would require some advancements to be made to him on the first year's premium notes, which he might take. Two contracts were entered into on the same date, but, as the second is the one upon which plaintiff bases his cause of action, we will pretermit any reference to the first contract. The second one is as follows:

"We hereby agree, until further notice, to handle notes accepted by you in settlement of first year's premiums on policies issued for your account, under the following conditions, to wit:

"All notes accepted by you must be payable at San Antonio, Texas, on a form satisfactory to the company; must be payable to you and indorsed by you and immediately forwarded to the home office of the company; must be for the full amount of the first year premiums, and must not run for a longer period than six months immediately succeeding the date of the same. No note must be accepted by you and forwarded to the company under this agreement, until you have made a thorough examination and satisfied yourself, that the maker of the note is responsible and the note will be duly paid at maturity.

"Everything being satisfactory, when a note for the full first year premium is received by the company, and the policy has been issued and delivered by you, the net amount due by you to the company on account of the premium on the policy in accordance with the terms of your contract, will be charged to your account, such charges to bear interest at the rate of six per cent. per annum until paid.

"Any note or notes forwarded to the company to be held by the company as collateral to your account, and your account to be credited with any and all amounts collected on account of said note or notes, less any cost of collection, until a credit accrues to your said account.

"It is distinctly understood and agreed that until any and all amounts so charged to your account shall have been fully repaid with interest, that same shall constitute a lien upon any and all marginal first year commissions, or any other allowance accruing to you whatsoever, as well as upon any and all credits accruing to your account from any source whatsoever.

"It is further agreed that any note or notes deposited by you hereunder shall not be withdrawn in whole or in part by you, until any amount due by you to the company shall have been paid in full; that in the event of any one of said notes not being paid at its maturity you will pay the amount due on same to this company upon demand; that any extension of time granted by this company, or its agent, on any note or notes turned over to the company hereunder shall be acceptable to you, and your indorsement shall remain on such note whether it is paid promptly or not, you hereby waiving protest on any of said notes; that this company shall not have any liability on account of the noncollection of said notes, but shall only be responsible for the proceeds of same which shall come...