19 S.W. 356 | Tex. | 1892
Suit by J.E. Lester, the appellant, against the New York Life Insurance Company, for damages alleged to have resulted from a breach of its contract with him, which contract was in writing, was attached to the petition as an exhibit, and made a part of the same.
It is alleged, that the company appointed him its district agent to canvass for life insurance in the Western District of Texas, upon certain stipulated commissions as compensation; that his appointment was exclusive to plaintiff; that he went to El Paso, the headquarters of his district, and there found another duly credited agent of the company, with authority from the company to act as its agent in the district, whose authority to so act was anterior to that of plaintiff, by reason of which and of a notice given by the agent to him he was unable to do any business, and was compelled to return to his home in the city of Houston; to his damage by such breach of the contract in certain expenses, loss of time, and profits he would have made in the business if he had been allowed to conduct the same as the sole and exclusive agent in the territory assigned to him.
The contract filed with the petition is substantially as follows: "This agreement, made this 10th day of April, in the year 1891, between W.E. Moore, general agent of the New York Life Insurance Company, party of the first part, and Jemison E. Lester, of El Paso, Texas, party of the second part, witnesseth." Moore then appoints Lester district agent, as alleged in general terms, but does not give him any exclusive rights as sole agent. He is appointed "as district agent of said company for the purpose of canvassing for applications," etc. He is prohibited from making any contract for the company. He is required to "act exclusively as agent for said company so far as to tender to it all applications obtained by him or under his control," * * * and "to devote sufficient time and energy in the service as to qualify him *90 as a good and efficient district agent." The contract next has stipulations as to what shall be done with moneys received by him, apportions his district, fixes his compensation by commission on original cash premiums on policies effected with the company "by or through said district agent," and it is then agreed as follows: "That in case said general agent, or any special agent acting for said general agent, shall secure business conjointly with said agent, the above rates of commission shall be divided equally." It is also agreed, that "said district agent shall not under any circumstances endeavor to prevent a person from insuring through any other agent of said company by offering such person the commission or any part thereof," The agreement also stipulates, that "said district agent shall have under this agreement no claims whatever for commissions or other services against the New York Life Insurance Company, and that the said general agent may offset against any claims under this contract any debt or debts due by said district agent to said general agent." The agent is required to "keep deposited with the general agent (or said company) a satisfactory bond for the faithful performance of all his duties pertaining to this district agency."
Plaintiff made Moore (the general agent) a party defendant, but dismissed him before the trial, leaving the suit standing only against the company.
The court sustained defendant's general demurrer to the petition; and plaintiff declining to amend, judgment was rendered that plaintiff take nothing, and that defendant go hence. Plaintiff has appealed.
The question raised by the assignments is, Does the petition state a cause of action against the company? It is contended by appellant, that though the contract shows it was made with Moore, it is alleged that he had authority from the company to do so, and that the demurrer should not have been sustained on the ground that the contract was with him only. Such an allegation was made, and it was sufficient to admit the testimony of the agent's authority to act for the company. It is also alleged that the contract bound the company. In determining this question the court below properly looked to the contract, and decided that it did not. The contract itself being made a part of the petition as an exhibit, controlled the averments; it shows affirmatively that the company was not to be bound by the contract. It stipulates that plaintiff shall have no claims whatever for commissions or services against the company. No other claim could grow out of the contract, and a breach of it would not give plaintiff a right of action against the company, the suit being against the company for a breach of its own contract. Freiberg, Klein Co. v. Magale,
But if this view of the case is not tenable, there is another ground upon which we think the demurrer was properly sustained. The petition alleges, that by the contract plaintiff was to have the exclusive right to act as the company's agent in the district assigned to him, and that the breach alleged consists in his having to retire from the business because another agent of the company had a prior contract with it covering the same territory. Again, upon an inspection of the contract we find that it contradicts the averment that plaintiff was to have the exclusive or sole agency in the district. The contract not only does not constitute him the sole agent, but it contains express stipulations wholly inconsistent with such an inference recognizing the right of the company to have other agents in the same district. We have before quoted the stipulations of the contract where such right is recognized requiring a division of commissions upon joint work with another agent, and which prevent him from interfering with the work of such other agent by offering the applicant the whole or any part of his commissions. We need not further discuss the matter.
The court did not err in sustaining the demurrer, and we conclude the judgment should be affirmed.
Affirmed.
Adopted March 22, 1892.
