policy, an itemized account of which is filed with the answer, which it is alleged plaintiffs have refused to pay. at all times accepted the risks and the pre-vember, 1898, to January, 1899, under an open miums paid, and paid for all losses sustained by the risks, without any complaint whatever that it had not been advised thereof by plaintiffs; that such notice would have been given by plaintiffs if it had been insisted on by defendant, but plaintiffs were led to believe, and did believe, from defendant's conduct and course of business, and from the fact that defendant's agent gave the notice that no such notice was expected or required of plaintiffs, that it was not required; that about the 15th of December, 1898, plaintiffs paid defendant, through its agent, the sum of $18.25, as premium of the risk or contract of insurance sued on, in full payment of the risk, and defendant accepted the same, and has retained it. Wherefore plaintiffs allege that defendant has waived the stipulation requiring notice from plaintiffs of the risks, and is estopped to rely on the same, or failure to comply with the same. Defendant demurred generally to the pleadings of plaintiffs, and specially because it is not alleged that defendant accepted the alleged risk, or at any time entered into any contract of insurance with plaintiffs, on the 900 bales of cotton; because the petition shows that, if any contract of insurance was entered into, the same was oral and void, and the petition | fails to set out the terms of such contract; because the petition shows that, if any contract of insurance was entered into, it was not until the loss had occurred. Defendant answered general denial, and specially that plaintiffs failed to notify defendant of the risk, by letter or telegram, as soon as known to the assured, as the policy of date August 31, 1898, stipulated and provided, and that for that reason the risk was never accepted, and no such risk was ever taken by defendant; and again alleging that at the time the contract sued on was issued the cotton covered thereby was already lost, and the loss was known to plaintiffs, because of which the policy was void, and was repudiated by defendant as soon as advised of the same. Defendant denies that E. B. Henly & Co., or E. B. Henly, was ever at any time its agent in matters of insurance, except to collect and remit to it premiums on insurance of the cotton of plaintiffs for the seasons of 1898 and 1899, but that in all things relating to the insurance of cotton he was the agent of plaintiffs. Defendant specially denies that it ever waived notice of any risk being given to it at the home office, as stipulated in the policy. It also denies that it received the premium for the risk sued on, but repudiated such collection as soon as notified, and, if the same was collected by E. B. Henly & Co., it was without its knowledge and consent, and if it received the same it offers to credit the same on the cross bill filed. The foregoing answer is sworn to by Rice, attorney for defendant. Defendant also filed a cross bill for $562.07 for unpaid insurance on cotton issued by defendant to plaintiffs at divers times from No We find the facts as follows: The cotton was shipped, as alleged, from Galveston, Tex., to Havre, France, on the ship Brinkburn, which, with all the cotton, was lost in a storm at sea. The cotton was insured by defendant as alleged, and plaintiffs applied to E. B. Henly & Co., E. B. Henly being the company, residing at Brownwood, Tex., for an additional 5 per cent. insurance on the cotton, which was legitimate, and was allowed by Henly. Henly did not issue the certificates covering the additional 5 per cent. on the cotton until the 15th day of December, 1898, the day of the loss of the vessel and the cotton, but the loss was not known until several days after. There was an open policy issued by defendant insurance company to Bell at the beginning of the season, which became operative as insurance from the time special lots of cotton were afterwards insured, evidenced by certificates covering the same, but it was in proof that defendant would insure cotton for plaintiffs before certificates were issued, and it is in proof that the insurance in question was taken and agreed on by plaintiffs and Henly before the 15th day of December, 1898, and before the wreck of the vessel. It is in proof that Henly acted for defendant insurance company, granting insurance in its name, which contracts of insurance were respected by the company and acted on, and thus insured numbers of shipments of cotton for plaintiffs in the name of the company. There is a stipulation in the open policy as follows: "Risks covered under this policy to be advised, as soon as known to the assured, to the Insurance Company of North America, 232 Walnut street, Philadelphia, by telegram or letter." Plaintiffs did not notify the company of this insurance according to the stipulation; but it was shown that in numerous other shipments issued by defendant this provision was not complied with, and it was in proof that this was the course of business with plaintiffs. It was in proof, and we so find the facts. The plaintiffs had already taken out policies on this lot of cotton covering its value and 5 per cent. additional, and, being advised by the consignee of the cotton at Havre, France, that the policy should cover, not only the value of the cotton and 5 per cent. additional, but 10 per cent. additional to cover the cost of transportation, they procured the additional 5 per cent. as stated. They applied to Henly for the additional 5 per cent., and he granted it. As in other cases, he issued no certificates at the time, but stated that it would be considered as insured for the additional 5 per cent. from the time of the application. He postponed the issuance of the certificates until the 15th day of December, 1898, when he did issue the certificates, forwarding one to the company, delivering one to the plaintiffs, and the other was attached to the invoice and bill of lading, to be sent with the draft to collect for the cotton; but, as before stated, on the same day the vessel and its contents, with the cotton, was wrecked in a storm at sea, and nothing recovered, which fact was not known by the parties to the suit until several days after. The course of business as conducted by the parties was: Defendant would cover or insure cotton for plaintiffs before any certificates were issued. This was done by plaintiff's notifying Henly that they desired a certain number of bales insured provisionally, and he would tell them, "All right," and he would then notify the company at the home office. In some instances the cotton would not be bought, but when he would get an order for it he would have it covered provisionally, and, when it was bought, invoiced, and ready for shipment, Henly would issue the certificates. "No particular time was mentioned in the marine insurance, but it was just covered from the time it was bought at different points in the interior to the end of the voyage." In November, 1898, plaintiffs applied for the additional 5 per cent. insurance on the cotton on the ship Brinkburn. The agent replied, "All right; give me the marks and numbers of bales on the certificates already issued on it, and I will write it up." He said he would do so whenever he got time, and "we'll just consider it covered." He was asked by plaintiffs if he had not better notify the company, and the agent replied, "No; it was not necessary;" and he did not notify the company until he sent it the certificates, December 15, 1898. Henly collected the premium on the additional insurance, and sent it to the company, and it received the same, which it has retained. The evidence does not show whether or not the ship was in fact wrecked before the certificates were issued, but it occurred on the same day. The evidence shows that Henly was the agent of the company in soliciting the insurance and in issuing the certificates. The account of defendant against plaintiffs was correct and due, and was credited by the jury and the judgment of the court without objection on the part of the plaintiffs; the verdict and judgment for plaintiffs being for the balance due on the additional insurance as shown by the certificates of in surance. Chas. Rogan and I. J. Rice, for appellant. T. C. Wilkinson, for appellee Bell. COLLARD, J. (after stating the facts). The court submitted the case to the jury on special issues and questions; the jury answering (1) that the cotton in controversy was insured by E. B. Henly as the agent of the defendant; (2) that the cotton was insured prior to its loss; (3) that the defendant had accepted the premiums on the additional insurance; (4) that the defendant company was advised of the additional insurance as soon as known to the assured; (5) that defendant, by its conduct or silence, led Bell to believe that notice from him of the risk was not required; (6) and that E. B. Henly informed plaintiffs that it was not necessary to give notice of the verbal contract of insurance. There was testimony supporting the findings of the jury on all the issues submitted, from 1 to 6, inclusive, and it cannot be said that the verdict was not supported by the evidence. On the contrary, there was evidence to support it, and it was not error to refuse a new trial upon the alleged ground that the verdict was contrary to, and against, the evidence. 2. We find no error in the refusal of the court to instruct the jury to find for defendant. The clause in the open policy requir ing plaintiffs to advise the company of the additional insurance was ignored by the parties in their previous dealings. It was not enforced, and the course of business previously pursued by the parties waived the performance of the stipulation on the part of the assured. It will be remarked that no penalty is provided for in the contract in case of failure to comply with the stipulation, nor does its importance appear so as to make it a condition to performance by the company. 3. The court did not instruct the jury as to what would constitute Henly the agent of the company, but merely required them to find on the issue of agency. Defendant asked no charge upon the subject, and we cannot say there was error in the omission. The attempt of appellant to make Henly the agent of Bell cannot avail. There was no such written stipulation in the policy or elsewhere; but if it had been so stipulated the facts would remain, and he would be the agent of the company, and it would be bound for his acts done in the scope of his authority. He acted for the company, issued certificates for it, sent in the premiums, which were accepted by it without objection, and was recognized by it as its agent to do what he did do. This was the usual course of the business, and it may be said he was held out by the company as its agent to do what he did do. His acts, then, in the scope of such apparent authority, would bind the company. Am. & Eng. Enc. Law, pp. 334, 335, and authorities cited; Id. pp. 320322, and notes. Even where it is provided that an agent cannot change terms and conditions, and they shall not be changed or waived except by the president in writing, the agent may waive, if he is otherwise competent. Id. pp. 338, 339. Especially when the company recognizes such acts on the part of the agent, and accepts the same with its compensation and results. We have considered every assignment of error, and have concluded that none of them can be sustained. The judgment of the lower court is therefore affirmed. Affirmed. CURTIS et al. v. KELLEY et al. (Court of Civil Appeals of Texas. Dec. 15, 1900.) PAROL TESTIMONY TO VARY WRITING-CONTRACT. A contract between partners owning a cattle ranch recited the sale of all the interest of one partner to the other, and an agreement by the latter to deliver to the former on a certain date 5,000 yearlings, to be taken from the herd on the ranch; and, in the event there were not that many at time of delivery, the branding of the year before was to be accepted in full satisfaction. Held, that the agreement was plain and unambiguous, and, not being attacked for fraud or mistake, could not be varied by parol testimony that the intention was to convey the yearlings at once, but that they were to run with their mother cows until the time of delivery. Appeal from district court, Borden county; W. R. Smith, Judge. Action by Curtis Bros. against S. A. Kelley and another. From a judgment for defendant Borden county, plaintiffs appeal. Reversed. Earnest & Sheppard, for appellants. E. R. Elliott and C. E. Dubois, for appellee. HUNTER, J. This suit was begun in the district court of Borden county on the 13th day of March, 1899, by J. W. Curtis, J. O. Curtis, and T. A. Curtis, who composed the firm of Curtis Bros., cattle breeders and dealers, against Borden county and S. A. Kelley, sheriff and ex officio tax collector of said county, to enjoin them from collecting a tax of $684, and 10 per cent. penalty thereon, alleged to be illegally and wrongfully assessed against them for the year 1898 on 5,000 head of yearling cattle located in Borden county, and placed on the unrendered roll of personal property without their knowledge or consent. The sheriff and county filed a joint answer, consisting of a general denial, and specially, by way of a cross action, in effect, that one E. Wilson and J. W. Curtis were on October 14, 1897, equal partners in a large stock of cattle, ranch, and ranch outfit located in said county, and that on said day they divided same; that in this division Wilson canceled and gave up to said Curtis certain notes he held against him, and gave his own note to Curtis for $5,000, payable December 1, 1898; that in consideration thereof Wilson received, as his share in the division, all the cattle belonging to the firm, except 5,000 yearlings of the branding of 1897, if there should be that many, but, if less than 5,000, then the brand for that year; that the title to said calves was thus and at that time transferred to said Curtis, but, the calves being too young to be separated from their mothers, it was agreed they should remain with the rest of the cattle, as the property of Curtis, until the spring of 1898; that soon afterwards J. W. Curtis transferred said calves to the firm of Curtis Bros., so that on the 1st day of January, 1898, they were the property of the said Curtis Bros., located in Borden county, and subject to assessment for taxes in said county as the property of Curtis Bros.; that they were so legally assessed; and that the said taxes amounted to $684, and a penalty is claimed thereon of $68.40. The pleading concludes: "That said taxes and penalty are long since due, and were due before the filing of this suit; that no part of said tax or penalty has been paid. Wherefore the defendants pray for judgment for said tax and penalty; that 10% damages be allowed on said tax and penalty; for costs and for general relief." The plaintiffs on October 24, 1899, took a nonsuit, but the case was continued on the docket to try the defendants' cross action as above set out, and plaintiffs filed a general demurrer thereto, and general denial, and specially answered that on October 14, 1897, J. W. Curtis sold all his interest in the said cattle, ranch, ranch outfit, etc., to Wilson, and as part of the consideration therefor Wilson agreed and bound himself to deliver to said Curtis 5,000 yearlings-onehalf heifers and one-half steers-on or before July 1, 1898, if so many were branded from said stock of cattle, but, if not, then the calf brand for 1897, and that afterwards J. W. Curtis transferred said contract to Curtis Bros., and they on February 24, 1898, transferred it to B. T. Ware; that by said contract of sale the said J. W. Curtis parted absolutely with all his title and interest, legal or equitable, in all of said stock of cattle, and they were delivered to the said Wilson at the date of said contract, and the said Wilson was bound thereby to deliver to J. W. Curtis the number of yearlings mentioned in said contract on or before July 1, 1898; and that the title to said yearlings was not in Curtis Bros. on January 1, 1897, but remained in said Wilson. The case was tried by the court without a jury, and judgment was rendered in favor of Borden county only, for the taxes and penalty as claimed, aggregating $752.40, and adjudged that Kelley take nothing by his cross action; and from this judgment Curtis Bros. have appealed, on an agreed statement of facts. On the trial of the cause the appellees introduced the following contract: "This agreement, made and entered into this, the 14th day of October, 1897, by and between J. W. Curtis, of the county of Hall and state of Texas, party of the first part, and E. Wilson, of the county of Jackson, state of Missouri, party of the second part, witnesseth, that J. W. Curtis, party of the first part, has this day contracted, and by these presents does sell, assign, transfer, and deliver to E. Wilson, party of the second part, all of the right, title, and interest of said Curtis in the following personal property, to wit: An undivided one-half interest fn all cattle branded MK on left side, and marked thus, so, an undivided one-half interest in and to all the cattle branded on left side, mostly, and earmarked thus, Also, an undivided one-half interest in and to all the cattle Al branded T on right side, and in various earmarks. Some of said described cattle may have other brands and marks, but the above brands are considered the title brands, and carry the title to said property. Also, an undivided one-half interest in all calves of 1897, branded on left jaw, and C on left side. Also, an undivided one-half interest in and to all cattle branded C on left side and thigh. Also, an undivided one-half interest in and to all horses, mules, wagons, harness, camp outfits, plows, tools, leases, and all other property belonging to, upon, and used in connection with the operation and running, what is known as the 'Magnolia Ranch,' situated in Borden, Garza, and adjoining counties, in the state of Texas, and all of the foregoing described property now being on the above-described ranch. In consideration of and for payment of said undivided onehalf interest in and to the above-described cattle, horses, mules, wagons, saddles, harness, camp outfits, plows, tools, leases, and all other property belonging to, upon, and used on said Magnolia ranch, the said E. Wilson, party of the second part, has this day executed and delivered to J. W. Curtis, party of the first part, his promissory note of even date herewith for the sum of five thousand dollars, payable to the order of J. W. Curtis on or before December 1st, 1898, with interest from June 1st, 1898, at the rate of 8% per annum. Also, as a further consideration, said E. Wilson agrees to cancel and surrender certain promissory notes, as follows, to wit: One note dated December 1st, 1896, for $12,133.79, due on or before August 1st, 1897, with interest at 9%; one note dated February 15th, 1896, for $41,762.50, due January 1st, 1897, with interest at 10%; one note dated December 1st, 1896, for $300.00, due August 1st, 1897, with interest at 9%; which said notes are signed by J. W. Curtis and J. O. Curtis, upon which notes there are credits aggregating $23,977.26; also, an open account of about $8,000,-the balance of all of which notes and account are now due said E. Wilson from J. W. Curtis, and unpaid, and which said notes and account are this day canceled, marked 'Paid,' and delivered to said Curtis. Also, as a further consideration for the sale of said property, the said E. Wilson, party of the second part, agrees to deliver to said J. W. Curtis on or before July 1st, 1898, five thousand yearlings, one-half of which are to be heifers, and one-half steers, all branded C on left side, and ⚫ on left jaw, and to be taken from the herd at Magnolia ranch, and none of which yearlings are to be branded later than October 15th, 1897, and are to be delivered at the Magnolia ranch in two lots, and when so delivered are to be branded at the expense of both parties in the brand used by J. W. Curtis, or his order; and, in the event there is not 5,000 yearlings in said brand of said herd at the time of delivery, then said Curtis agrees to receive the branding of 1897 in lieu of said 5,000 yearlings aforesaid, except the bull calves branded in 1897, in full satisfaction of said agreement to deliver same. It is further agreed that, in the event any cattle are killed or crippled in branding, the loss of same is to be borne by the said party of the first part. This contract is executed in duplicate, and each party hereto has a copy. In witness whereof, we have hereunto set our hands and seals the day and year above stated. J. W. Curtis. E. Wilson." After introducing this contract the appellees proved by Wilson, over the objections of appellants, that, in effect, the contract was simply a division of the partnership property, whereby he took the stock of cattle, and J. W. Curtis retained 5,000 head of yearlings, which were to run with their mother cows until the next July, and then to be turned back to Curtis. Also, oral evidence was introduced of a mortgage which Curtis Bros. had executed in the fall of 1897 to Drum, Flato & Co., on said yearlings, to secure a loan of $75,000, but which was rejected finally on account of a question as to Curtis' title to the yearlings, and the affidavit of one of the Curtis brothers to the effect that his firm was the owner of said yearlings. This was also objected to. The evidence was not competent, because it tended to contradict the written contract between the parties, and should have been excluded. The contract was definite and plain in its terms, and not ambiguous, and was not attacked by any pleading for fraud or mistake, but was relied on by both parties as the repository of their agreement. It was the duty of the court to declare the legal effect of the contract, from its terms, and they were too plain to admit of construction or explanation by oral evidence. They simply show an absolute sale of all the title and interest of Curtis in all the partnership stock of cattle, ranch, ranch outfit, etc., to Wilson; and, in addition to other considerations expressed, Wilson "agrees to deliver to said J. W. Curtis on or before July 1, 1898, five thousand yearlings, one-half of which are to be heifers and one-half steers, to be taken from the herd of Magnolia ranch; *** and, in the event there is not 5,000 yearlings in said brand of said herd at the time of delivery, then said Curtis agrees to receive the branding of 1897 in lieu of said 5,000 yearlings aforesaid, except the bull calves branded in 1897, in full satisfaction of said agreement to deliver same." We think, until this delivery was made, no title to the yearlings would pass to Curtis, and that the assessment of these 5,000 yearlings against the Curtis Bros. was void. They belonged to Wilson, under the contract, until they were delivered to Curtis or his assignee. It becomes unnecessary to decide whether the county of Borden could maintain this cross action, and whether it was necessary for the appellees, in their cross petition, to plead, and on the trial to prove, an order of the commissioners' court directing the suit to be brought, as seems to be required by our statutes (2 Sayles' Civ. St. art. 5212a). For the error pointed out the judgment is reversed, and is here rendered in favor of appellants. MEXICAN CENT. RY. CO., Limited, v. OLMSTEAD. (Court of Civil Appeals of Texas. Dec. 19, 1900.) SET-OFF AND COUNTERCLAIM-CLAIMS ARIS- An exception in an action in Texas to a counterclaim arising in Mexico, on the ground that the Mexican laws on the subject on which the counterclaim was based were so dissimilar to the Texas laws that the court could not entertain jurisdiction, cannot be sustained without proof as to what the Mexican laws were: for without proof such foreign laws would be presumed to be the same as the Texas laws. Appeal from El Paso county court; James R. Harper, Judge. Action by George P. Olmstead against the Mexican Central Railway Company, Limited. From a judgment in favor of plaintiff, defendant appeals. Reversed. Falvey & Davis, for appellant. Maurice McKelligon, for appellee. JAMES, C. J. Plaintiff, Olmstead, sued in the justice's court for $18.16, alleged to be due him by appellant for services as conductor of one of its freight trains in Mexico. Appellant pleaded in the justice's court in reconvention that plaintiff, while working as conductor, appropriated to his own use five cars of wood belonging to appellant, of the value of $150.85, and sold same to the electric light company at San Luis Potosi, Mexico. The judgment in the justice's court was in favor of plaintiff, recovery on the cross action being denied. On an appeal to the county court by appellant, that court sustained a jurisdictional plea to the cross action, and dismissed the appeal, the amount then involved being less than $20. This plea alleged (among other matters not involved in this appeal) that defendant's cause of action or counterclaim, if any, arose in the republic of Mexico, and was controlled by the laws of that country; that, since it is founded on tort or breach of covenant, it could not be heard in this tribunal, for the reason that the supreme court of Texas has decided, upon such a state of facts as pleaded by defendant, that a cause of action arising in Mexico will not be adjudicated by the courts of Texas. A supplemental plea, which purports to be for further exception to the counterclaim of defendant, set up that the laws of Mexico, upon the subject of liability for such matters, are So vague, uncertain, and dissimilar to the laws of this country that the court should not entertain jurisdiction herein, and attempt to enforce the same; that such laws were passed on in the case of Railway Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, wherein the supreme court held that courts of this state would not adjudicate claims like the one urged by defendant; that the policy of this state and of its courts would be not to interfere with the traffic of railroads having their lines in Mexico by adjudicating causes arising in Mexico under laws dissimilar from our own, and proceeds to allege what the laws of Mexico are. No proof whatever was taken on this plea, but judgment was rendered sustaining the plea and exception, and dismissing the appeal, for the reason (as the judgment recites) "that, under the decision in the case of Railway Co. v. Jackson, the supreme court of Texas has held that a cause of action founded on a tort cannot be adjudicated in the courts of Texas." The judgment, of course, meant a tort committed in Mexico. All we have to decide on this appeal is whether or not the court erred in sustaining the plea and exception upon the particular ground considered, viz. the jurisdiction of the county court to entertain the cross action. The laws of Mexico could not, in any event, have any effect upon its jurisdiction until the laws of Mexico with reference to the very subject were not only pleaded, but proved. The supreme court did not intend to decide, and did not decide, in the Jackson Case, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, that our courts were without jurisdiction to try cases of torts arising in a foreign country. In the absence of proof of the laws of a foreign country, they will be presumed to be the same as ours. Armendiaz v. De la Serna, 40 Tex. 291. Until proved, the foreign law could not be known to be unlike ours, and the question upon which this case went off could not arise. Without expressing any opinion on what the law would be in this case if the foreign law on the subject were alleged and proved, we reverse the judgment, and remand the cause to the county court for further proceedings. BALLES et ux. v. DOLCH et al. (Court of Civil Appeals of Texas. Dec. 19, 1900.) TRESPASS TO TRY TITLE-ADVERSE POSSESSION-OCCUPATION AS TENANT. A party cannot establish title to land by adverse possession, where he has occupied it as a tenant for the claimant and for those through whom the latter claims. Appeal from district court, Maverick county; J. M. Goggin, Judge. Action by Dolch, Dibrell, and Mosheim against Victor Balles and wife. From a judgment in favor of plaintiffs, defendants appeal. Affirmed. F. Vandervoort, for appellants. Dibrell & Mosheim, for appellees. |