North River Ins. Co. v. Reeder

288 S.W. 257 | Tex. App. | 1926

The stipulations in the policy and notes referred to in the statement above were valid ones. Thomas v Insurance Co. (Tex.Com.App.) 277 S.W. 1041; Insurance Co. v. Baggett (Tex.Civ.App.) 275 S.W. 313; Duncan v. Insurance Co., 113 Tex. 305, 254 S.W. 1101. As they were, and as it appeared that the note due June 12, 1924, had not been paid November 8, 1924, when the fire occurred, the judgment should have been in favor of plaintiff in error, unless it appeared from the testimony heard at the trial that it was guilty of conduct which deprived it of a right to set up the violation of the stipulations as a defense against the recovery sought against it. Defendant in error insisted in the court below and insists here that it appeared plaintiff in error (acting by its local agent at New Boston, one J. W. Eddins, who issued the policy sued upon) was guilty of such conduct, and, as supporting its contention, refers to testimony in the record showing facts as follows: Defendant in error instructed Eddins to draw drafts on him for the premium of the policy as the parts thereof became due, and arranged with the New Boston National Bank to pay the drafts. Eddins accordingly drew drafts for the part of the premium payable at the time the policy was executed and for the part covered by the note which matured June 12, 1923, and said drafts were paid by said bank. At or about the time the note maturing June 12, 1924, became due, defendant in error requested Eddins to have the time of payment thereof extended until the fall of that year, so he could pay it out of the proceeds of cotton he expected then to sell. Thereupon Eddins wrote to plaintiff in error about the matter, and it was agreed to extend the time of payment to October 12, 1924. "Along about the 1st or 2d of November" after that date, and before the fire occurred, plaintiff in error having instructed him to "either collect the note or take up the policy and mail it to them," Eddins notified defendant in error that plaintiff in error had written him that the "note was due and that the extension was up." Thereupon "I told him," defendant in error said, testifying as a witness, "that I guessed I would have to pay it, and I told him that I would get the money. We talked a while and later on I told him just to go to the bank and make a draft on me for the money, and he said, `Well'; and I never heard anything more about it until after the fire, when I found out that Mr. Eddins did not get the money and that the note was not paid. He told me that he had forgotten it. I then offered him the cash, and he refused to take it." Had Eddins drawn a draft on defendant in error for the amount of the note and presented same to the bank, the bank would have paid it.

There was testimony that, as to the policy sued upon, Eddins was merely a soliciting agent. Defendant in error insists, and we agree, that, while Eddins may have been that kind of an agent so far as the issuance of the policy was concerned, he was plaintiff in error's collecting agent so far as the unpaid premium due on the policy was concerned. But we do not agree with defendant in error that, treating Eddins as such a collecting agent, his conduct as shown in the facts stated above constituted a waiver by plaintiff in error of the breach by defendant in error of the stipulations in the policy and note in question, and operated to estop it from setting up the failure of defendant in error to pay said note at the expiration of the time to which payment thereof had been extended as a defense against recovery by defendant in error of anything on account of the policy.

A collecting agent, unless expressly authorized to do so, cannot extend the time of payment of a debt due his principal (Behrns v. Rogers [Tex. Civ. App.] 40 S.W. 419); nor can he, with authority only to collect, bind his principal by accepting anything other than money in payment of such a debt (Manufacturing Co. v. Maverick [Tex. Civ. App.] 23 S.W. 728; Assur. Soc. v. Cole, 13 Tex. Civ. App. 486, 35 S.W. 720; Zang v. Realty Co. [Tex. Civ. App.] 125 S.W. 85).

As we view it, there is nothing in the record before us showing authority in Eddins (had he pretended to do so and he did not) to bind plaintiff in error by an agreement to further extend the time of payment of the note, nor anything showing authority, express or implied, in Eddins (had he pretended to do so, and we think he did) to accept anything except money in payment of the note in question.

The most defendant in error can contend for as supporting his view is that Eddins agreed with him to draw on him through the bank for the amount of the unpaid premium represented by the note; that, had Eddins so drawn on him, the draft would have been paid; and that the note remained unpaid at the time of the fire because Eddins failed to keep his promise to him.

If, as we think appeared in the testimony, Eddins was without authority to bind plaintiff in error by such a promise, defendant in error had no right to charge plaintiff in error with the consequences of Eddins' failure to keep it. As defendant in error did not possess such a right, it is clear there was no merit in his claim that plaintiff in error had waived its right to set up his failure to pay the past-due note before the fire occurred as a defense against the recovery awarded to him, and that the judgment, therefore, should have been in plaintiff in error's favor.

It will be reversed, and judgment will be rendered here that defendant in error take nothing by his suit against plaintiff in error, and that the latter recover its costs of the former.