S. L. P., K. & Ladies of Honor v. Grace

60 Tex. 569, 1884 Tex. LEXIS 2

Opinions

West, Associate Justice.

This record has been examined with more than usual care, and the conclusion arrived at reached after much deliberation. That conclusion is, without giving in detail all the reasons on which it is based, that under all the facts disclosed on the trial, taken and considered together, we are of opinion that the evidence does not satisfactorily show that any binding contract of insurance, such as is declared on, was ever in fact made between the appellant and the deceased.

The minds of the respective parties never met. There was no such mutual agreement and understanding of the matter between them, as is essential in order to create the contract and give it binding force on both parties, under the rules and regulations by which the relations of the deceased to the appellant were governed. Bliss on Life Ins., p. 766, sec. 426; Edge v. Duke, 38 L. I. Ch., 183. See, also, 8 W. & S., p. 247; Blacksmith Co. v. Van Dyke, 2 Whart., p. 312.

It may be inferred from the record before us that Grace was ignorant of the fact that his name was not among the charter members and that his application for a relief fund certificate had been refused. Anacosta Tribe of Red Men v. Murbach, 13 Md., 91; Diehl v. Adams Co. Mut. Ins. Co., 58 Penn., 440.

There is not, however, sufficient testimony in the case to enable us to say that the contract itself was proved to exist as alleged. On the contrary we think the evidence was insufficient to establish the existence of the contract relied on, as the basis and foundation of appellees’ suit. The judgment is reversed, and this court here proceeds to render such judgment as the court below should have rendered. It is ordered that the appellees take nothing by their suit, and that appellant go hence without day and have and recover of and from the appellees all their costs in this behalf expended.

Reversed and rendered.

[Opinion delivered January 17, 1884.]