It is not necessary to determine whether the testimony was sufficient to show a complete contract on the part of Massay to insure appellee's dwelling house and its contents against fire or not; for the testimony was wholly insufficient to show that Massay, if he did so contract, acted for or was authorized to act for appellant. Therefore we think the trial court erred when he refused appellant's request to peremptorily instruct the jury to find in its favor.
It appeared without dispute that Cravens Cage, doing business in Houston, were general agents for appellant in Texas. It further so appeared that while Massay and his partner, Murphy, were insurance agents in Greenville, at the time Massay took appellee's application for the insurance and sent it to Cravens Cage, neither he nor his firm was then the agent, or had ever been, of appellant, or had or ever had any authority whatever to act for it in any way. It is plain, therefore, that when Massay took the application and sent it to Cravens Cage, he had no authority to act for and did not act for appellant, but, instead, acted for appellee. In other words, in doing that he was appellee's, not appellant's, agent. For anything to the *Page 1159 contrary appearing in the record, there had never been any communication of any character between Massay or his firm and appellant or its general agents Cravens Cage before the latter received from Massay Murphy a letter transmitting appellee's application, as follows:
"Greenville, Texas, 11/30/12.
"Cravens Cage, Houston. Texas — Gentlemen:
"Re Claud McMillan Application. "Not knowing whether you would write a dairy barn, this is submitted, and if you care to write it please advise before doing so, this is good business of its class.
"Yours truly, Massay Murphy."
Up to this point in the transaction there is no pretense in the evidence that Massay acted for any except appellee. The contention, on the part of appellee is that the letter Cravens Cage sent in reply to the one set out above conferred upon Massay authority to act for appellant in concluding with him a contract for the insurance. That letter was as follows:
"December 4, 1912.
"Messrs. Massay Murphy, Greenville, Texas — Gentlemen:
"Application of Claud McMillan. "Replying to your favor of the 30th ultimo, we beg to advise that we shall be glad to write a three year policy on Mr. McMillan's dwelling and furniture, but we cannot write a policy for that length of time on his dairy barn. By a reference to the basis schedule, you will find that dairy barns are rated under the mercantile schedule, and therefore a term policy cannot be written upon a frame risk. We shall be glad to insure the dairy barn for one year at a time, at a rate to be promulgated by Mr. Roulet (which will be approximately $3.64). Awaiting you advices, we remain,
"Yours very truly, Cravens Cage."
It will be noted that Massay Murphy in their letter to Cravens Cage did not ask them to issue a policy to appellee. On the contrary, Cravens Cage were told, in effect, not to issue such policy before they heard further from Massay Murphy. The plain and only purpose of the letter was to ascertain if appellant would issue such a policy in compliance with the application accompanying the letter, if appellee, after being advised that it would and of the terms on which it would issue same, should wish it to do so. Cravens Cage in the letter they sent in reply merely furnished Massey Murphy the information they asked for. The latter were told that appellant would not issue a policy insuring the dwelling house and furniture and the barn for a term of three years in compliance with appellee's application, but, if advised that same was desired, would issue one insuring the dwelling and furniture for a term of three years, and the barn for one year. The Cravens Cage letter having been written merely for the purpose of furnishing Massay Murphy information they wished for appellee's benefit, and going no further, we think it should not be construed as conferring upon Massay Murphy any authority whatever to act for appellant. Certainly, if it conferred any such authority on them, it was only to communicate to appellee the fact that appellant would not issue to appellee a policy in conformity with his application, but, if he desired it and requested it to do so, would issue to him on payment of the premium it charged therefor a policy insuring his dwelling house and furniture for a term of three years and his barn for one year. Plainly, if the letter should be construed as conferring only the authority on Massay Murphy, they could not bind appellant by a contract to insure the property. And if the letter should be construed as also authorizing Massay Murphy to act for appellant in communicating to it the fact that appellee did not desire insurance on the barn at the rate indicated in the letter, but did wish insurance on the dwelling house and barn, it would still appear that they were lacking in authority they must have had before they could bind appellant as appellee claimed they had. For authority of an agent merely to receive and communicate to his principal would not empower the agent to accept the offer and thereby bind the principal. Nor would the conclusion be different if the letter should be construed as a proposal on the part of appellant, through Massay Murphy, to appellee to issue a policy on either his dwelling house, furniture, and barn, or on the dwelling house and furniture alone. For the proposal should be construed as conditioned on the payment then, and not at some time in the future, of the premium charged on the policy. The evidence showed conclusively that appellee never paid nor tendered the premium to Massay Murphy. The contention was that Massay at the time he agreed to insure the property impliedly waived the payment of the premium and impliedly agreed that appellee might pay same at some time in the future. Authority possessed by a special agent to bind his principal for a consideration then paid to insure property would not empower the agent to bind his principal to insure for a consideration to be paid at some time in the future.
The judgment will be reversed, and judgment will be here rendered that appellee take nothing by his suit against appellant.