On Motion for Rehearing.
Appellant has filed a very able and elaborate motion for rehearing in this cause. In this motion it challenges the correctness of the finding of the court embodied in the following paragraph of the original opinion:
“Appellant was made fully acquainted' with the fact that appellee desired protection from financial loss against a possible failure of either the Texas American Company or the Holt Motor Company to account for and pay over to appellee the proceeds of the sale of each of the four cars on which appellee held its mortgage. Appellant knew this was the sole purpose of appellee’s purchase of the insurance. With full knowledge in this respect it issued its indemnity bond with the indorsement thereon, showing the character of business in which appellee was engaged, and undertook to give it the insurance desired.”
It is claimed by appellant that there is no direct evidence in the record that would warrant such finding, and that, the only circumstance upon which such finding could be based is the indorsement placed on the bond, and that this, in itself, is insufficient to warrant the court in making the above finding. In this statement appellant is in error.
E. R. Burget, vice president, and manager of appellee, in reference to the knowledge of appellant as to the kind of guarantee ap-pellee desired and believed it was receiving, testified as follows:
“At the time of the execution and delivery of this bond and of the supplement, and of each of the four certificates, Mr. Mike Murphy knew of the conditions attending the loans that I have made.”
Mike Murphy was the agent of appellant who represented it in all the business negotiations carried on between appellant and appellee, and through him the indorsement was placed on the bond referred to by the witness as a supplement.
In addition to this, the witness also testified that when either the Texas American Company or the Holt Motor Company had purchased a car and a portion of the purchase money had been furnished said purchaser by appellee to make the payment, the witness had carried both the note and the mortgage received by appellee from the purchaser to Mr. Murphy; that he had a conversation with him in reference thereto, and he then received the certificate of fidelity insurance' from Mr. Murphy.
This evidence is undisputed, and we believe it sufficient to warrant the finding of fact to which objection is made in this motion for a rehearing. Indeed, we are of the opinion that, when this testimony is read in the light of the indorsement made on the bond a few days after it was executed, which indorsement is set out in the original opinion, no other conclusion can be drawn than that stated in the finding of fact, of which this complaint is made.
The motion for rehearing has been carefully considered, and, as it presents no new matter, is overruled.