in the name of his estate. The Gulf, Colora- I common-law marriage with the deceased was do & Santa Fé Railway Company filed in its controverted, but her insistence is that the own behalf a contest, alleging that the ap- testimony of Mrs. Nora Walton herself was plicant, Mrs. Marie Estelle Walton, had al- so conflicting and contradictory as to be in ready filed in the Tenth district court of itself discrediting, and thereby to raise a Galveston county a suit against it for dam- question for the jury as to whether the alages for the death of N. A. Walton, that she leged marriage in fact existed. sought appointment as administratrix of his estate for the sole purpose of enabling her to prosecute that suit, and upon information and belief denying that she was his wife, or that her child was his lawful child: upon like information and belief it further charged that Mrs. Nora Walton and her three children were the lawful wife and children of deceased, N. A. Walton, and then prayed as follows:

"Premises considered, said railway company prays that the court hear evidence and determine by proper decree who is the lawful wife and who are the lawful children of said N. A. Walton, deceased, and that the administrator who may be appointed by the court be directed accordingly, so that suit against your petitioner, if, any, may be instituted and prosecuted in behalf of the rightful parties, to the end that your petitioner may be protected by any judgment that may be rendered therein."

Mrs. Nora Walton also filed a contest, alleging that she was the common-law wife of the deceased under a marriage with him of that character, contracted before his attempt to marry the applicant under statutory authority, which had never been dissolved, and asked the appointment for herself. Judgment in the county court went in favor of the applicant and against the contestants, who appealed to the district court, where a like result was had. The contestants, Mrs. Nora Walton and the railway company, have accordingly as appellants brought the district court's proceedings to this court for review. The district court had submitted to a jury the question as to whether there was a common-law marriage between Mrs. Nora Walton and Norton A. Walton, and, upon its finding that there had not been, entered the judgment she here complains of.

We think the undisputed proof showed an agreement between appellant and the deceased to become husband and wife, and that pursuant to this agreement they lived and cohabited together as such, publicly so held each other out to the world, and were so known, received, and recognized by their neighbors and the community in general, for a period of about four or five years, beginning in 1897, and during which time there were born to them as the fruit of such marriage three children; that they were never divorced; and that all this antedated by several years the attempt of the deceased through the forms of the statutory law to marry the appellee in 1907. Nor is this result dependent alone upon the testimony of Mrs. Nora Walton, for although she was fully corroborated by unimpeached and uncontroverted proof,

both oral and documentary, in all respects essential for establishment of the common-law marriage declared upon, it was likewise shown independently; while N. A. Walton was a railroad man of an apparently roving disposition, hence not at home continuously during that period, from 1897 until somewhere about 1903 he and appellant made their home at Ft. Madison, Iowa, living there together as husband and wife at the home of his parents and elsewhere in the town, and were so recognized by his parents, the local merchants, and the community in general; many letters from him to her while away from home during this time, addressed to her as his wife and signed by himself as her husband, the handwriting in a number of them being identified as his by the appellee herself, were offered in evidence, each being the kind of letter a man would ordinarily write to his wife; there was in evidence also By their first and second assignments ap- a policy of insurance taken out, signed, and pellants contend that the court erred in sub-made payable by him to appellant as his wife; mitting as a fact issue to the jury this question of whether or not there was any such common-law marriage, but should have granted their requested peremptory instruction to find in favor of Mrs. Nora Walton, upon the ground that the undisputed evidence showed there was a common-law marriage between her and Norton A. Walton, and no proper fact issue was therefore left for the jury. After careful examination of the entire body of evidence offered, we are compelled to agree with them, and must sustain both assignments.

Deeming it unnecessary, we shall not attempt to make any full résumé of the testimony, but will only state the salient features; in doing that, it may first be noted that appellee does not seriously contend that the

likewise an application for employment, in which he had been asked the question whether he was or was not married, which was answered by him in the affirmative, and her address in Ft. Madison, Iowa, given.

[1] Although the appellant was the only witness who directly testified to an actual agreement between herself and the deceased to become husband and wife, the undisputed facts shown from entirely separate sources, by inevitable inference at least, demonstrate that there was one; James Walton, the aged father of deceased, N. A. Walton, testified that soon after their marriage they came to his home and lived with his family for some time; that they lived there as man and wife, and he so considered them; that each told him they had been married, and the deceased

dence; it becomes unnecessary to discuss them, however, since the conclusion already stated determines the merits of the appeal. No question has been raised in this court as to the right of the railway company to fille and prosecute the contest it did in this proceeding, and we do not pass upon that matter.

the town where they lived a notice of their marriage; that his son always held her out to him and to his mother as his wife, and that he had never heard this fact questioned. Pictures were introduced in evidence showing the children of the appellant, along with other grandchildren of the deceased's parents, on picnics and at play, which showed that they were received by all as members of the family. The testimony of one of deceased's brothers was also to the same effect as that of the father; members of the train crew with which he worked while living in Ft. Madison testified that during the time N. A. and Nora Walton were living there they lived as man and wife, that each held out the other as such, and that up until the time of this trial they had never heard this fact CANADIAN OIL & GAS CO. v. WEBB et al. questioned.

As the facts were all fully developed below, it follows that the trial court's judgment must be reversed, and judgment here rendered for appellant Mrs. Nora Walton, and it has been so ordered. Reversed and rendered.

(No. 1333.)

April 24, 1918.)

1. LIMITATION OF ACTIONS 46(1)-ACCRUAL OF CAUSE OF ACTION - COMMENCEMENT OF RELATION OF DEBTOR AND CREDITOR.

[2] There may appear some little discrep- (Court of Civil Appeals of Texas. Amarillo. ancy in the length of time these actual relations were shown to subsist, which we have stated as about four or five years, but that becomes wholly immaterial when it is recalled that no fixed nor continuous period of time for their so living together is necessary to constitute such relations a valid marriage as at common law. Such was the Such was the trial court's charge, following the holding of this court upon the former appeal of this same cause. Walton v. Walton, 191 S. W. 188. See, also, G. H. & S. A. Ry. Co. v. Cody, 20 Tex. Civ. App. 520, 50 S. W. 135; Schwarz v. Allen, 37 S. W. 986; Chapman v. Chapman, 11 Tex. Civ. App. 392, 32 S. W. 564.

[3] Neither do the statements and admissions made by Mrs. Nora Walton upon crossexamination that the deceased had the reputation of having a sweetheart in every town, that he received many letters from other women, and being a man of that kind, may have been keeping other women at different places, and at intervals, during the time she claimed he was her common-law husband, militate against the force of the previously stated and unassailed facts establishing that relationship; this is necessarily so for the reason that both conditions, deplorable as they might be, could coexist during the same general period of time without destroying the legal effect of his having actually so lived and cohabited with her. And this conclusion really disposes of about the only answer made by appellee to the overwhelming proof offered in substantiation of the common-law marriage alleged; while under the rule announced in McAfee v. Robertson, 41 Tex. 357, and kindred cases, we are not at all prepared to concede that the testimony of Mrs. Nora Walton should be disregarded, as is contended for by appellee, still in the state of this record, as has already been indicated, there was abundant proof from other unquestioned

sources.

There are further assignments raising in other forms the same issue as the first two, also some relating to matters of evi

owner of certain piping provided that the gas A contract between an oil company and the company was to borrow such piping used for casing in sinking oil wells, and, if oil was found of such casing, but if oil was not found, the in paying quantities, to pay the reasonable value company would pull the casing from the well, or as much thereof as it could, and leave it at the company's well on the ground. The comtion of the casing only, leaving part in the well. pany abandoned the well and pulled out a porHeld, that the right to sue for the casing left in the well accrued at that time; the relation of lender and borrower having then ceased and the relation of debtor and creditor commenced.

2. PARTNERSHIP 159-NOTICE TO PARTNERSHIP-AGENCY.

Where a partnership has loaned casing to an oil company, notice to one partner that the relation of lender and borrower had ceased, and that of debtor and creditor arisen, was notice to the partnership. 3. LIMITATION OF ACTIONS CONVERSION.

67-NOTICE

HUFF, C. J. Webb sued R. S. Allen, J. A. Fisher, L. O. Thompson, H. E. Hume, and the Canadian Oil & Gas Company. The suit was filed originally December 20, 1915. By a second amended original petition, filed on the 27th day of February, 1917, the Canadian

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

liability ever attached. Under the findings of the court there was no illegal taking or conversion of the casing in the first instance, but the casing was taken and kept under an agreement, and only an implied obligation to pay for the casing not removed from the well. Allen, being a partner with Webb in the ownership of the casing, had the right to control it as much so as did Webb.

[2] It appears from the findings that Allen permitted the appellant to use the casing to further the interest of the partnership enterprise. Notice to Allen that the casing was returned as agreed upon, and that the condition had arisen contemplated by the contract which would change the relation from a borrower to a debtor, would operate as notice to Webb. Notice to one partner will ordinarily operate as notice to the part

with his partner. Webb seeks to recover a partnership debt due both partners because, as a member of the firm, he did not actually know the facts. Certainly Allen could not recover, and we do not think Webb entitled to recover when he permitted Allen to act as his agent. Notice to Allen was notice to him.

The judgment will be reversed and rendered for appellant, and that Webb take nothing by reason of the suit. Reversed and rendered.

HALL, J., not sitting.

SOUTHWESTERN SURETY INS. CO. v.
HICO OIL MILL. (No. 8766.)
Ft. Worth.
Feb. 16, 1918. On Rehearing,
April 13, 1918.)

nership, or to the other partner, on the (Court of Civil Appeals of Texas. ground that one is the agent of the other. Smith v. Adams, 4 Tex. Civ. App. 5, 23 S. . 1. GUARANTY 20-PRINCIPAL AND SURETY 49; Rippetoe v. Dwyer, 65 Tex. 703; Liddell v. Crain, 53 Tex..549.

[3] The appellant oil company was sued nearly four years after the cause of action accrued, and under the findings of fact by the court he should have rendered judgment for the appellant under the two-year statute of limitation pleaded by it. Article 5687, R. C. S. While the appellant pleaded fraud and collusion between appellant Allen and other parties, the court does not find any such, but found that there was a contract made in furtherance of the partnership interest. It was pleaded by the appellee that the casing was represented to have been sold by Allen to Webb. The court does not find such allegation to be true. The court finds no fraud or subterfuge on the part of appellant, or any one else, to conceal the matter from appellee. A copy of a substituted citation and petition shows that the original suit was filed December 20, 1915, against Allen and others, and that the appellant was not sued until the 27th day of February, 1917. The court found that Webb did not know what had become of the casing until a year or eighteen

39-MISREPRESENTATION-EFFECT.

It is a general rule that if one is induced to become a surety or guarantor for another through material misrepresentations of fact, the contract is invalid, and obligor will be discharged, even though the representations are honestly made. 2. INSURANCE FENSES.

134(2)-APPLICATION-DE

Failure to attach application and questions and answers as required by Vernon's Sayles' Ann. Civ. St. 1914, art. 4951, providing that every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic, or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto, deprives an insurer on fidelity bond of the defense that misrepresentations made without knowledge of their falsity, and with no intention to deceive, would vitiate the policy, although such misrepresentations Would vitiate the policy in the absence of such 3. INSURANCE 134(2) — FIDELITY INSUR

statute.

ANCE-REPRESENTATIONS.

An "employer's statement" consisting of questions and answers required by a fidelity insurance company in addition to an application by the employé, was one required by Vernon's Sayles' Ann. Civ. St. 1914, art. 4951, to be attached to the policy or bond.

Appeal from District Court, Tarrant County; J. W. Swayne, Judge.

Action by C. H. Bencini, doing business under the trade name of the Hico Oil Company, against the Southwestern Surety Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

months prior to the institution of the suit, but that he made no effort to find out from Allen, his copartner. It will be seen that more than two years had elapsed after he learned about where the casing was before he sued appellant. Part of the property had been turned back to the partnership more than three years before appellant was sued, and the admission was made to the partnership that the remainder of the casing could not be removed from the well. If the court's judgment should be permitted to stand, Webb would recover Allen's half when Allen knew for more than four years DUNKLIN, J. From a judgment in favor all the facts. If Allen was acting fraudu- of C. H. Bencini, doing business under the lently with his partner, this would not de- trade-name of the Hico Oil Company, against feat appellant's rights. It should not be the Southwestern Surety Insurance Comcharged with Allen's bad faith in dealing pany upon its bond in which it agreed to re

Capps, Cantry, Hanger & Short and Wm. L. Evans, all of Ft. Worth, and John T. Suggs, of Denison, for appellant. McLean, Scott & McLean, of Ft. Worth, and C. L. McCartney, of Brownwood, for appellee.

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

imburse plaintiff for any pecuniary loss he | and discovered during said continuance, or withmight sustain through the fraud or dishon-in six months thereafter, or within six months esty of Horace M. Scales, his employé and employé from the service of the said employer." from the death or dismissal or retirement of the business manager, the defendant has appealed.

Scales made a written application to the defendant for the bond upon a printed form containing many questions propounded to

"Hico Oil Mill, Hico, Texas. An application has been made to this company to issue a bond of security for Mr. Horace M. Scales as manager in your service at Hico, to the amount of $5,000. The company desires to have answers to the following questions, and the answers will be taken as a part of the consideration for the bond if issued. Very respectfully yours, W. B. Munson, President."

The bond was in the sum of $5,000 and was dated September 10, 1911, at which time

Scales was, and had been for several years prior thereto, in the employment of plaintiff. Among other defenses the surety com

him with blanks to be filled in with his answers thereto, and in which his answers pany pleaded that the execution and delivwere written. Upon receipt of the applica-ery of the bond was induced by belief in the tion and before issuing the bond, defendant truth of the representations of plaintiff contion and before issuing the bond, defendant tained in the "employer's statement," and mailed to plaintiff a printed statement in further alleged the falsity of those repreblank styled "employer's statement," to be sentations which were to the effect that at filled out and returned to the company tothe time the statement was made Scales gether with a letter reading as follows: was not indebted to plaintiff in any sum; that his accounts with plaintiff had been properly checked and showed that all funds and securities with which he was chargeable were on hand, and that none of same had been misappropriated nor converted to his own use by Scales. It was alleged that upon the date of the "employer's statement" Scales was indebted to' plaintiff in divers sums, and prior thereto had misappropriated and embezzled funds belonging to plaintiff, all of which facts were known to plaintiff, or by the exercise of due diligence should have been so known, and that his misrepresentations of the same constituted a fraud, which vitiated the bond issued in reliance thereon. Upon the trial, defendant offered in evidence the "employer's statement" to support said defense of fraud, but the same was excluded by the trial court upon plaintiffs' objection to the effect that it was rendered inadmissible by virtue of those provisions of article 4951, Vernon's Sayles' Tex. Civ. Stats., which are as follows:

Upon receipt of the letter and blank statement, plaintiff filled in the blanks with his answers to the numerous questions propounded to him and returned the same to the surety company. Upon receipt of that statement the defendant executed and delivered to plaintiff the bond sued on. The only provisions of the bond material to this controversy are as follows:

"Whereas, Horace M. Scales, Hico, Tex., hereinafter called the "employé," has been appointed to the position of manager in the service of Hico Oil Mill, Hico, Tex., hereinafter called the "employer" and has been required to furnish a bond for his honesty in the performance of his duties in the said position; and whereas, the employer has delivered to Southwestern Surety Insurance Company, with general offices at Durant, Okl., a corporation organized under the laws of Oklahoma, hereinafter called the "company," a statement in writing setting forth the nature and character of the office or position to which the employé has been elected or appointed, the nature and character of his duties and responsibilities and the safeguards and checks to be used upon the employé in the discharge of the duties of said office or position, and other matters, which statement is made a part hereof: "Now, therefore, in consideration of the sum of twelve and 50/100 dollars, paid as a premium for the period from October 7, 1911, to October 7, 1912, at 12 o'clock noon, and upon the faith of the said statement as aforesaid by the employer which the employer hereby warrants to be true, it is hereby agreed and declared that subject to the provisions and conditions herein contained, which shall be conditions precedent to the right on the part of the employer to recover under this bond, the company shall within three months next after notice, accompanied by satisfactory proof of a loss as hereinafter mentioned, has been given to the company, make good and reimburse to the employer all and any pecuniary loss sustained by the employer of money, securities, or other personal property in the possession of the employé, or for the possession of which he is responsible, by any act of fraud or dishonesty the part of said employé in the discharge of the duties of his office or position as set forth in said statement referred to, amounting to larceny or embezzlement, and which shall have been committed during the con

"Every contract or policy of insurance issued or contracted for in this state shall be accompanied by a written, photographic or printed copy of the application for such insurance policy or contract, as well as a copy of all questions asked and answers given thereto."

The trial was upon an agreed statement of facts, and the only assignments of error presented are to the action of the court in excluding such evidence and refusing to render judgment in favor of the defendant based on that proof. The following appears in the statement of facts:

"It is further agreed that the fidelity bond sued on in this case was not accompanied by any written, photographic, or printed copy of the application for such fidelity bond, which said application as above referred to is hereto attached, nor of any written, photographic, or printed copy of the 'employer's statement,' heretofore referred to and attached, accompanied the same, but the said fidelity bond was delivered just as it appears hereto attached, with no other documents of any kind accompanying or attached to the same.

"It is further agreed that during the period covered by the fidelity bond plaintiff sustained a pecuniary loss amounting to as much as the sum of $5,000 through dishonesty on the part of H. M. Scales while in the discharge of the duties of his position, amounting to larceny or embezzlement committed during the continuance of