On Rehearing. In its motion for rehearing and for additional findings of fact, plaintiff in error calls our attention to an error in copying the letter of February 10th from Chiles to Toy Bros. The letter is copied as stating, "this request may be signed by a legally appointed guardian," when the verbiage of the letter is, "the request must be signed by a legally appointed guardian." We make the correction as suggested, so as to show the use of the word "must" instead of "may." A correction in the statement of facts giving the date of the letter from Toy to Chiles inclosing the check for $50 and the seven notes is made. The date of the letter is February 14, 1911, instead of February 4th, as in the statement. This last error evidently resulted from an error in the letter from Chiles to Toy of February 15th, in which he says: "I have your favor of the 4th inst., inclosing check, etc."
Plaintiff in error requests that this court find as a fact that, as a condition to its reducing its outstanding contract of insurance, the company required that a written application for such reduction be submitted to it and the terms of it. The letter is referred to in the opinion as of January 30th and a portion only of it copied. We here copy the letter in full: *Page 949
"January 30th, 1911.
"Mr. S. H. Chiles, Manager, 209 Praetorian Bldg., Dallas, Texas — Dear Sir: In, re 118637. J. W. Eggleston. In response to yours of the 28th, I beg to say that we will be pleased to reduce the above policy from $10,000.00 to $5,000.00 upon surrender of the original policy and receipt of proper application for reduction duly completed by the insured and beneficiary, which application is herein inclosed. The settlement of premium suggested by you is entirely satisfactory to the company, and I inclose you herein six notes of $25.00 each and one of $12.60, to which obtain signature, collect the $50.00 referred to in your communication, when the matter will have our further consideration. Thanking you for your attention to this matter, I am, with kind regards,
"Very truly yours, C. M. Currie,
"CMC/MAN. Assistant Secretary."
The letter of February 10, 1911, from Chiles to Toy Bros., copied in the opinion, shows the further action of the company.
Plaintiff in error requests this court to find as a fact that prior to the execution of the application for reduction of insurance Eggleston and wife had informed Toy that Mrs. Eggleston was the legally appointed guardian of the beneficiary, John W. Eggleston, Jr., and that Toy had no information to the contrary. The evidence is not clear on the fact requested. We state the evidence: J. C. Toy said:
"The only information I had as to whether or not Mrs. Eggleston was the legally appointed guardian of J. W. Eggleston, Jr., was the statement of Mr. Eggleston and Mrs. Eggleston that such was the case. They stated to me that she was his guardian."
At the request of appellant, we further find as a fact that the company never appropriated to its own use the money and the seven notes delivered by Eggleston to Toy for the purpose of paying the premium on the reduced insurance, but held same in suspense until March 20, 1911, when Currie sent the cash and notes to Chiles to be delivered to Eggleston; Chiles, through Toy, returned them to Eggleston March 25, 1911; the money and notes were returned to the company, when the company again sent them back to a bank at Ft. Worth to be delivered to Eggleston or any one representing him; and on May 29, 1911, Mrs, Eggleston, then the appointed guardian of Mr. Eggleston, accepted from the bank the money and notes. A question is raised by the appellee as to whether Mrs. Eggleston, without an order of court, could accept the money and notes; Eggleston then being insane.
We are requested to make other findings of fact, but we think the record would hardly justify the requested findings, and for that reason we have not done so. The original opinion expressed the disposition we think should be made of the case, and the motion for a rehearing is overruled.