*1 Judge, HUTCHESON, Chief Before TUTTLE, Circuit and RIYES Judges. Judge.

TUTTLE, Circuit appeal presents This properly dis- whether stating as not the trial court missed pro- are other of action. There a cause urges appellee questions which cedural being equally important. originally by Pope, filed suit was alleging agent, that he was an insurance insurance to renewal commis- entitled from the National Old sions Company, for Insurance Line formerly response worked. to a Pope definite statement for more motion First Amended Com- filed following plaint, he made the al- in which legations : August 10, 1950, de- On whereby entered into a contract fendant *2 591 agent plaintiff renewal sales order an insurance commissions —and in to became provided so that it to of for It was wished establish a record defendant. invoking against plaintiff com- such allowed renewal forfeitures would be agents. policies he had written on that missions long according as to a schedule certain paragraph pleading X al- of this he employed by the he as continued to be leged : employed as or if he had been “Plaintiff acted in on reliance long years receive the would three he representations assurances and of he work after ceased commissions even custom, usage Defendant and on the years of after for a certain number practice and with re- Defendant agency; however, if termination gard renewals, to has said and been ceasing years to three after work within damaged by repudiation Defendant’s defendant, plaintiff would in assurances, representations, of said territory in- same for another solicit custom, usage practice and to the full * * * surance “all future extent value said renewals. * * * payments cease and be shall alternative, In the Defendant has Party at its elec- forfeited to the First right any waived it ever have * * tion urge provisions had to the forfeiture 1954, 14, September had On * * *» with defendant’s certain conversations prayer expressly In addition the asked allegedly president assured him that who adjudge court to “that the defendant immediately quit if now ac- even he and asserting estopped relying or on cepted employment firm the with another provisions per- of the written contract would not elect to forfeit defendant mitting plain- the defendant to forfeit commissions, renewal since as a matter commissions, tiff’s renewal or de- policy in order to cement relations fendant has waived same.” employees its had never invoked with Thereafter the defendant received similar moved to clause. Plaintiff parts general all agent, strike based assurances from his a vice- usage, custom and oral president company. on modification of contract, quantum meruit. The 15, 1954, September plaintiff quit On granting its court entered order this mo- employment with im- defendant and tion in full. mediately job took another com- with territory. pany in the same 15 the On December defendant filed complaint, to its motion dismiss thus 1954, 12, 15, April September to From emasculated, following day paid plaintiff his renew- defendant complainant pleading filed a en- he On the later date al commissions. Rehearing,” Motion payments titled “Plaintiff’s would informed rehearing prayed he in because discontinued defendant striking parts its just relations with its order of the com- terminated court’s agent general plaint.1 wished to forfeit Original Complaint parts motion of this are as The relevant Amended Exhibit hereto, by virtue of ‘A’ which Plaintiff follows: ruling disposes clearly ques- of the is- he has shown fact believes “The Court’s go alleged entitling jury him Plaintiff in Ms First to the tions sue relating pleading said oral the issues raised ing waiver, relat- Amended Plaintiff’s written and fraud. Plain- con- modification intentionally ground alleges that Defendant Defendant on tiff tract with therefor, relinquished right and waived was shown its consideration but dispose plead- issues his renewal commissions under of the other does not forfeit contract, Complaint, and with a written ed in view to said correct said fully, stating of fact Plaintiff said issues more Plaintiff would said judgment has, permission, prepared certainly entitled to as a with the Court’s Secondly, Motion Plaintiff al- and attached to this a Second matter law. argue attempting alleges Without that the statement error of trial ruling^ dismissing court erred in rather grounds, the suit “on other sought pearing accept it, any, he then to if under plain- the facts ruling have the court reverse its be- tiff’s Second Amended Com- *3 cause, alleged, pend- plaint” as he was still there estoppel as to the and waiver ing estoppel, waiver, points, an of whereas no such Second Amended attached, A, Original and fraud. spell Exhibit Complaint He to was ever filed or explicitly passed by out the basis more factual on the court. enlarge upon theory and to of es- Nevertheless, spite and in of the fail- toppel waiver, proposed a amend- appellant of ure point in up his brief to

ment, which, however, he did not file or the real case, issue in the we are con- permission ask to file. The record is vinced that the trial court erred dis- in hearing silent on what was on this missing complaint, the because under dismiss, or on the motion to motion the extremely liberal Federal Rules3 there parties both treat matter as complaint sufficient matter in the to though the record disclosed that a hear- allege plaintiff that was entitled to con- ing on was had the motion to dismiss tinue to receive his commissions even light plaintiff’s profert in of of a sec- though accepted employment he with a Following argument ond amendment. competitor, since, by reason of defend- the court entered ing final its order dismiss- assurances, ant's estopped it was ex- to opinion. complaint without ercise its election pay- to cancel the ments. appeal, record as to the both to and as the “Statement below made We comment on the state of Appeal,” on On To Be Relied Points of position by ap record and the taken be desired.2 much to leaves pellant appellee because the stresses appellant states that he is procedural points being Here the these a bar complaining of an error the trial appeal. of Where, to a successful how dismissing the suit on the in ever, court is entire record before us and grounds of of consideration to modi- amply reading lack upon clear it is the amend agency fy con- complaint the terms written a ed that claim on which re tract, granted trial court did not do. out, which the could lief was set merely allegations as struck the to It appears it from when the record before modification, separate and then in a oral us the trial court that dismissed such prevented dismissed the suit for failure later order this Court is not sending of action. state a cause Then the the case back to the trial 2. “Statement missing Plaintiff and for another the same area tion to asserting any right clause of said renewals employment the written leges on on sentation, “The consideration ^[*****] renewals, Defendant, by that Appeal. of error this him that the written contract and Plaintiff’s Defendant agency suit in reliance life even Defendant, the Points to be Relied on insurance “I. which should it would not contract between the under said forfeiture Plaintiff’s modify estopped Trial by grounds subsequent on he its he or Court had worked said go representa- change * * terms of lack forfeit repre- work now loss dis- of in 3. Rule der liance waived the itself in tiff that Plaintiff ment to ternative, Plaintiff’s commissions grounds, commissions, by contract entitled Defendant ten contract.” O.A. Plaintiff’s alternative, Rule by 8(a), thereon, forfeiture it would not forfeit his renewal Plaintiff, and, into 8(a). renewal that Defendant forfeiture any, Fed.Rules representations that Defendant would believing Second Amended Plaintiff’s the Defendant facts under the provisions commissions, not be forfeited un- provisions Civ.Proc., further that Ms renewal resulting subsequent to the Plain- to confiscate of the writ- in the al- defrauded expressly estopped 28 U.S. and, of detri- said re- resign the em- if he chose to and enter development issues for the so, ployment competitor; any he did re- a alleged. such not read We assurance; upon reliance power in in Court striction during following thereafter, period 75(d), requires of an Rule regularly paid which the renewals were pellant statement file concise (this rely payment period of time is points he intends on which significance designate only for inclu- whether if he fails to arose), Rule an con- record. 28 U.S.C.A. sion the entire trary position 75(d), it led Fed.Rules Civ.Proc. take, posi- believe would reversed its to whether be said as Whatever *4 commis- tion and cancelled the renewal ade- here Amended the First payments. sion by appellee of quately a waiver right renewals, it is to cancel the The asserts a claim complaint facts did assert clear the upon granted, and which relief could be trial, which, proved would amount if requirements Rule thus satisfies the against defendant’s the to an asserting supra. 8(a) The fact that the right to cancel. the sought unsuccessfully have the court setting proposed equitable a es- consider amendment The definition of classical theory estop specifically given Pomeroy4 by more toppel out the Professor looking pel prevent does not us from adopted repeatedly applied has been by and language pending recovery the of the amended permit a courts Texas complaint against to determine whether set a defendant who is said be relying out a cause of action. “estopped” on an otherwise good defense to the course, action. not, express any do view We might proven upon to what be trial that, Equi- a “It is further the law issues, we hold that Estoppel table effect of the vol- complaint was untary whereby first amended require sufficient person conduct of pleadings asserting from the de- precluded rights defensive he is against touching of the issue relying fendant merits another on such con- duct; raised. person and it arises where a by acts, representations, his or even judgment dismissing complaint The silence, induces another to believe is proceedings and the cause remanded reversed exist, that certain facts or is led to with this not inconsistent change position including for the worse. opinion, of such the allowance 130; C.J.S., Estoppel, Tex.Jur. 31 17 appropriate. amendments as 59, p. 236; The Praetorians v. § Judge HUTCHESON, (con- Chief Strickland, Tex.Com.App., 66 S.W.2d curring specially). (Tex.Civ. 686.” Theriot v. Smith App.), judg- 181,183. 263 reversal of the S.W.2d concur in the I given in the reasons for it. but not ment allegations in the that, me in the seems clear to state- before the court after it had It remained theory point relied on of the to be of oral modification of ment struck appellant properly peal, stated the real amounted to a claim that the contract knowing plaintiff having case, re- plaintiff, that under the issue quested file tendered fil- leave to contract with defend- terms legal right complaint, which, ing a second amended latter had to can- ant the might be said of thé first his renewal commissions he left whatever cel against it, company competed complaint, did state cause amended judge sought action, assurances from district erred in his obtained some two months defendant that it would not order entered there- dismissing plaintiff’s to cancel the renewal commissions after suit. elect

4. 2 Pom. Eq.Jur., 4th ed. § Motors, 5 Copeland Co. v. General Motor precise Cir., 199 F.2d by this presented was determined here position taken of the in favor points to appellant his statement appeal. on on

be relied deference, to me clear it seems With ignoring deci- the dominant case, the second feature sive original plain- complaint, which

amended substitution tiff had tendered original com- first amended abandoned action,

plaint, cause stated very struggle doubtful instead with the question, and su- abandoned whether the did, majority

perseded complaint has *5 longer in the matter case labored a no significance having appeal on this of the case. future conduct

or in the

Dissenting opinion from therefore unresponsive completely issue as determination, I concur in

presented for goes, I far dis- reversal opinion failure of sent pe- amended second determine clearly cause of state did tition couple its failure to action to consider the directions with

remand duly petition as filed as amended second tender. date REED, Appellant, L.

Arnold

v. INSURANCE OLD LINE

NATIONAL COMPANY, Appellee. No. 16147. McEIroy, Turner, White, B. Thomas Atwood, Francis, Tex., Dallas, McLane & Appeals Court of States United appellant. Fifth Circuit. Dec. Atwell, Dallas, Tex., Webster Beloit Taylor, Jackson, Rock, Ark., E. F. Little Grayson, III, Dallas, Tex.,

Walton appellee. HUTCHESON, Judge, Chief

Before TUTTLE, RIVES Circuit Judges.