other pleadings in this case, as they will not in any way affect the conclusion we have reached. This report was made by lee's application. The case was tried before the trial court without a jury. The facts may be stated That he phoned in to Martin & Co. at Ft. generally that appellant had a general agen- from Plainview, on the 24th day of June, 1916, Worth the application of Patrick and one Cain, cy at Ft. Worth, Tex., K. T. Martin & Co., after he reached that place from Lockney. That whose authority was to accept or reject ap- he was in the office of Meriwether Bros., and plications for insurance and to issue policies in discussing other matters with them made therefor. Martin testified he received the with the Ft. Worth office by phone, when they mention that he was going to communicate application June 27, 1916, and that it was on informed him they had some applications which that day that he issued it and mailed the same they were preparing to wire in, and asked if to the appellee. The policy, as testified to he would not save them the expense, "and when by the parties and as pleaded by all of them, which they had then prepared, showing the name I phoned Mr. Martin to also phone the letter shows that it was issued on the 27th of June, and amount in each policy, number of acres and that it was effective from 12 o'clock covered, and where located. This I agreed to noon of that day. The appellee, or the ap- do, but stated at the time to Geo. T. Meriwether, of the firm of Meriwether Bros., that on pellant, did not offer the policy in evidence, account of weather conditions which then existbut without objection all the witnesses treated I would recommend to the office that no poliit as of that date, and being effective as in-cies be issued until the application reached the surance from that time, and both parties in effect pleaded such was the effect of the policy. We shall therefore consider the policy on that issue as properly before the court. The cotton insured was destroyed June 26, 1916, in the afternoon about 4 o'clock, the day before the policy was issued or dated. On the 24th day of June, 1916, Oscar Vinson took Patrick's application for the insurance, and he testified: "I remember taking the application of the plaintiff, J. K. Patrick, on the 24th day of June, 1916, at Flomot, in Motley county. He was living on the E. A. Preston farm. The amount of insurance was $500, and the policy was taken to cover at the rate of $20 per acre. I took Mr. Patrick's application up to Lockney to be wired in that night, and I told Mr. Patrick that I would wire it in myself, and as I understood it it would take effect 24 hours after being wired into the office at Ft. Worth. I got this understanding from Meriwether Bros., and from a letter shown me by them. The letter you show me is the letter written Meriwether Bros., which I read: 'National Fire Insurance Co. of Pittsburg, Pa. K. T. Martin & Co., State Agents, Hail Department. Ft. Worth, Texas, June 17, 1917 [1916?]. Messrs. Meriwether Brothers, Lockney, Texas-Gentlemen: I have had instructions from the company not to bind any more application by wire immediately upon receipt of the wire, however, I will put the application into effect in 24 hours after I receive a wire, if that will be any advantage to you. In most of the territory the agent can mail an application in the evening, and it reaches our office the next morning, at which time the insurance goes into effect, but of course you are out on a branch road and it takes the mail longer to get from Lockney to Ft. Worth than it would ordinarily any place else. Thanking you very much for the business that you have given us, I beg to remain, Yours very truly, [Signed] K. T. Martin, State Agts.' office, because it then looked like it might hail at any minute. On reaching Plainview that night, I communicated with Mr. Martin over telephone concerning the various items of business, and did read to him the message given to and also told him the clouds were hanging low, me by Geo. T. Meriwether, of Meriwether Bros., and it looked as if it might hail any minute, and that I thought it would be very improper to tions could reach the office and be approved in bind any policy until such time as the applicathe usual manner. Mr. Martin stated to me that he would not bind any application until they were received at the office in Ft. Worth in the usual way.” F. T. Day, of Waseca, Minn., testified that his business was writing hail insurance, managing agents, writing insurance, and general manager of the hail department if appellant during the year 1916. He was permitted to testify, without objection: "The date of the policy issued to the plaintiff in this case is June 27, A. D. 1916, and under its terms became effective at 12 o'clock noon on that date. The language of the application inquired about in this interrogatory is as follows: 'I, J. K. Patrick, of Flomot, O. O., R. F. D. -, county of Motley, state of Texas, hereby make application for insurance upon growing cotton against damage by hail, only, for the season of 1916, to the amount of $500.00, from the day this application is accepted and approved at the state office of the hail department of the National Union Fire Insurance Company, at Ft. Worth, Texas, at 12 o'clock noon, standard time until October 1, 1916, standard time, where property is located, and in no event shall the company be liable after the insured's cotton is picked on the following described property.' Then follows a description of the property and other provisions in reference to the insurance, not material here." The appellee testified: "At the time I gave Mr. Vinson the application he told me he would have it wired in, and as he understood it it would take effect 24 hours after being wired into the office at Ft. Worth." Vinson wrote hail insurance for appellant company, and testified he had authority only from Meriwether Bros., of Lockney, Tex., Assignments 1, 2, and 3 all assail the judgwho are local agents at that place for appel- ment of the court because the evidence does lant. Robt. L. Forrest, an adjuster for ap- not support it. (1) That it appears from the pellant, during the year 1916 was in Meri- pleadings that the policy to be valid must wether Bros.' office at Lockney June 24, first be countersigned by the agent of the 1916. In his testimony he states that Meri- company at Ft. Worth, Tex., and that it was wether Bros. made report of the applications not signed until June 27, 1916. (2) The evireceived that day, among which was appel-dence is uncontroverted that there was no contract of insurance prior to the loss. (3) That the application was made June 24th, crop destroyed June 26th, and the policy issued June 27th, effective from that date until October 1, 1916. (4) And there was no effort to reform the policy, and the suit was filed as upon the written policy, and the judgment should therefore have been rendered for appellant. finding that the soliciting agent had authority to contract with the applicant that the insurance should be effective 24 hours after having been wired to the agent at Ft. Worth, and if the application was accepted under such agreement or understanding the company might be estopped from denying such a thereafter. He could not make a contract of insurance by accepting part of the proposition and rejecting a part, but he should have rejected it as a whole, if he did not agree to the proposition. He could not for his company accept that which was beneficial to it and reject that which he considered an extra burden, but he must abide by the entire contract completed upon acceptance. If he did not wish to accept the application as made, with storm clouds hanging low, threatening hail, he should have rejected the entire application. The company ought not be permitted to retain the premium which was paid for a period of time for which it was applied without also being liable for the loss occurring during that time. Taber v. Eyler, 162 S. W. 490. contract. Amarillo National Life Ins. Co. v. Brown, 166 S. W. 658. If when the applica[1-3] The appellee makes certain objections tion was phoned to the agent he then accepted to the assignments, which, if they are good, the application he probably did so with the would not affect the disposition of this ap-understanding that it was effective 24 hours peal for the reason that if the errors complained of should be sustained they are fundamental. The general proposition may be true, as stated by appellee, that an oral contract of insurance will bind the insurer, but appellee did not declare on an oral contract of insurance. He shows that he made an application for insurance, which the solic iting agent took, and which was forwarded to the company's general agent at Ft. Worth, who was authorized to issue the policy, and who did issue it as of date June 27, 1916. This policy, according to all the evidence, was effective from 12 o'clock noon of that date. This was in writing, and it is conclusive evidence of the contract, unless impeached by fraud or mistake. The cotton insured was destroyed about 4 o'clock on the afternoon of June 26th, a day before the insurance was effective. Hence, under the policy, no liability was shown. The mere application for insurance is not a contract of insurance. When the application is made out and forwarded it has only attained to the dignity of a proposition on the part of the applicant, which must be accepted by the proposed insurer before it can become a contract of insurance. Merchants' & Bankers' etc., v. Parker, 190 S. W. 525, and authorities therein cited; Insurance Co. v. Rudolph, 45 Tex. 457; German Insurance Co. v. Daniels, 33 S. W. 549; Coker v. Atlas, etc., 31 S. W. 703; Insurance Co. v. Young, 23 Wall. 85, 23 L. Ed. 152; Dorman v. Insurance Co., 41 Okl. 509, 139 Pac. 262, 51 L. R. A. (N. S.) 873. There is no evidence that the insurance applied for should be effective from the date of the application. It is uncontradicted that the insurance was only effective from the day of acceptance by the Martin Company at Ft. Worth. All that may be said is that the general agent could have accepted when the application should be wired in, and that upon such agreement the appellee applied for the insurance, effective 24 hours after the application should be wired to the agency. The contract alleged and proven, and as executed, does not show it was so accepted, but on the contrary shows it was consummated on the 27th of June, and effective from 12 o'clock noon of that day. [4, 5] However, the facts in this case under [6-9] It should be noted that this evidence would not contradict the application to the effect that the policy is effective from the day the application is accepted by the agency at Ft. Worth. The agency at Ft. Worth, according to their letter, had expressly authorized the soliciting agents to wire in applications because of their situation as to mail facilities, and that liability should begin 24 hours thereafter. The evidence might warrant the finding that this insurance was solicited and obtained on such authority and an agreement based thereon. If it was part of the contract, and so accepted, it should be enforced. The time was fixed for the commencement of liability, and the agent could not, after so accepting, postdate the contract; but, if he was unwilling to accept the contract, he should have rejected it in toto. What is here said is subject to the fundamental rule that there must be a mutual assent in order to make a contract of insurance. Hence, as the pleadings now stand, even if the soliciting agent procured the application upon the authority and agreement testified to the policy as issued evidences that the proposition as made was not assented to. In order to impeach a contract in writing or supply an omission or correct a recital to make it speak the agreement of the parties it is necessary to allege either fraud or mutual mistake in executing the contract. In this case it is simply alleged that it was the understanding when appellee made the ap A written contract for the purchase of grain by defendant, a resident of Texas, from a company doing business in Nebraska, contemplating the interstate transportation and delivery of the grain, was within the rules applicable to interstate commerce; so that Pen. Code 1911, art. 539, inhibiting dealings in futures without a bona fide intent of the parties to deliver the goods, did not apply. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 4. COMMERCE 80-FOREIGN CORPORATIONS -INTERSTATE COMMERCE. be effective from the date of the application. [ 3. COMMERCE 40(1) "INTERSTATE COMMERCE" DEALING IN FUTURES-STATE STATThe evidence offered on this point is that it UTE. should be effective 24 hours after the application should be wired to the agency. In other words, there is no allegation of facts constituting either mutual mistake or fraud in making the contract, or in issuing the policy, and such fact should be affirmatively so alleged in order to introduce all the agreement or to import into the contract the omitted provisions therefrom. Parker v. Allen, 33 Tex. Civ. App. 206, 76 S. W. 74; Dalton v. Dalton, 143 S. W. 241. As alleged, in effect it is asserted no agreement was ever reached. In order to set up the contract as made, that is, to protect the property from 24 hours after the application should be wired to the agency, it was necessary to allege and prove the policy omitted that term, and that it was fraudulently so omitted or fraudulently postdated, or that the same was done by the mutual mistake of the parties. But it was not necessary to bring an independent suit to reform the contract, but if properly alleged and proven in this case recovery could be had on the contract as it should have been. Insurance Co. v. Brannon, 99 Tex. 391, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020; Alfalfa Lumber Co. v. Mudgett et al., No. 1243, this day handed down, 199 S. W. 337. For the reasons above given, the judgment of the lower court is reversed, and the cause remanded. MERRIAM & MILLARD CO. v. COLE. (Court of Civil Appeals of Texas. Ft. Worth. 1. GAMING 12-CONTRACT FOR FUTURE DE LIVERY-INTENT-VALIDITY. A contract for the sale of goods to be delivered at a future date is valid, even though the seller has not the goods nor any other means of getting them than to go into the market and buy them, provided the parties really intend and agree that the goods are to be delivered by the seller and the price is to be paid by the buyer; though if the real intent is to speculate and the goods are not to be delivered, but the parties are to settle according to the difference between the contract price and the market price at the date fixed for executing the contract, the contract is invalid. 2. GAMING 50(1)-SALE FOR FUTURE DELIVERY-ACTION FOR PRICE-EVIDENCE-DIRECTED VERDICT. In a suit to recover a balance due under a written contract for the purchase of oats, providing for the deposit of a margin, and for an option to declare the contract at an end, where it appeared that the seller had the oats in an elevator, and that the parties contemplated a delivery, and not a settlement based upon the difference between the contract price and the market price at the time fixed for delivery or a gambling contract or a dealing in futures, the plaintiff was entitled to a verdict. The laws of the state of Texas authorizing a foreign corporation to transact business or to maintain a suit therein by obtaining a permit to do so have no application to cases where the corporation's business constitutes interstate commerce. Appeal from District Court, Denton County; C. F. Spencer, Judge. Suit by the Merriam & Millard Company against T. A. Cole. Judgment for defendant, and plaintiff appeals. Reversed, and judgment rendered for plaintiff. Geo. M. Hopkins, of Denton, for appellant. Sullivan & Hill and Luther Hoffman, all of Denton, for appellee. CONNER, C. J. The appellant company instituted this suit against appellee to recover a balance of $828.54 alleged to be due under a written contract dated on the 4th day of September, 1913. By the terms of the contract, which will be later set out, appellee purchased from the appellant 15.000 bushels of No. 3 white oats at the contract price of 552 cents per bushel for December shipment, basis Texas group 1, with the option of carrying after December 31, 1913, . at a quarter of a cent per bushel for each 10 days, until May 1, 1914. Appellant alleged that it was a corporation duly incor porated under the laws of the state of Nebraska, with office and place of business in the city of Omaha, Neb., engaged in interstate commerce and carrying on such interstate commerce in the state of Texas and other states, buying and selling grain from its office in Omaha, Neb., to parties residing in other states of the Union, including the state of Texas, making contracts for the sale of corn, wheat, oats, and other grain, and delivering such grain under such cou tracts into the state of Texas and other states from its elevators at Omaha, Neb., as interstate commerce. The appellee answered by general denial and a special answer, alleging that the appellant was a foreign corporation not authorized to transact business or maintain suit in the state of Texas. in that it had not secured a permit under our laws to do so, and further that the contract of sale sued upon was a gambling contract and did not constitute interstate commerce. The case was tried before a jury For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes upon special issues, which were so answered tifies. In cases wherein more than one contract as to sustain the special defenses urged by has been made, deposit call and subsequent calls appellee, whereupon the court entered judg-net aggregate difference owing by one party to for the releasing of same shall not exceed the the other on all contracts open and amenable to this rule. ment in appellee's favor, from which judgment this appeal has been prosecuted. A number of questions are presented which, in view of the conclusion reached by us, need not be noticed. The controlling question, as we view the case, is presented by appellant's fourth assignment urging error to the action of the court in refusing to give a peremptory instruction to find for the plaintiff in the suit, as was duly requested in writing. We are of opinion that this assignment must be sustained. dent member of the Omaha Grain Exchange "Second. Said margin when called by a resishall be deposited with the secretary of the Omaha Grain Exchange and shall be subject to the rules of the Omaha Grain Exchange governing the depositing and releasing of margins. Nonresidents may deposit with the secretary of the Omaha Grain Exchange or in any banking institution properly designated as a depository for margins. Margins must be deposited within twenty-four (24) hours as herein provided; legal holidays in either buyer's or seller's place of business shall not be counted. Nonresidents of The contract upon which appellant based Omaha, Neb., may remit by telegraphic transfer its suit is as follows: "We herewith confirm sale to you: Quantity 15,000 bushels. Grade, No. 3 white oats. Price, 552 per bushel of 32 pounds. Basis, Texas group 1. Time of shipment: December shipment, buyer's option. Routing: Remarks: Privilege of carrying after December 31st at a quarter of a cent for each ten days to May 1st. or by mail remittance if preceded by telegraphic notification from (his or their) local bank that such remittance has been made. "Third. Party making marginal deposit must advise the secretary of the Omaha Grain Exchange immediately, giving name of party for whose protection the deposit is made. "Fourth. In case marginal deposit call to the market is not deposited and official notice of same is not received within twenty-four (24) hours, as hereinbefore provided, the party thus calling shall have the privilege to cancel all contracts covered by such margin call at the general market value, or to resell or rebuy at his or their option, under prompt telegraphic advice, charging difference or loss to the defaulting party, said amount to be due and payable at once. "Omaha Grain Exchange weights and grades to govern. "Fifth. All margins shall be immediately re"Payment by demand draft with documents at-leased upon faithful performance of the contract. tached. "Sixth. Where contracts for future delivery "It shall be the duty of the buyer to furnish of grain include a carrying charge, such carryshipping directions immediately or upon requesting charge must be paid and collected at the exof the seller, and if the buyer fails to furnish piration of each thirty day period. directions, in accordance with this agreement, "Seventh. A committee of three shall be apthe seller reserves the right, without further no-pointed by the president, to whom all disputes tice to the buyer, to cancel the contract, charg- as to a proper marginal price, or any other ing loss, if any, to the buyer, or to sell same for feature connected with cash margins, shall be the buyer's account. referred. "This transaction is made under the rules, regulations and customs of the Omaha Grain Exchange of the City of Omaha. Any claims or differences to be settled under rules and regulations of the Omaha Grain Exchange of the City of Omaha in Omaha. "Shipping terms are defined by the Omaha Grain Exchange as follows: "Three days shipment shall mean within three calendar days at place of shipment. "Five days shipment shall mean within five calendar days at place of shipment. "Ten days shipment shall mean within ten calendar days at place of shipment. "Excluding the date of sale, time of shipment shall be figured from date full shipping directions are received at Omaha. "Sale or purchase of grain for which shipment or delivery may extend beyond ten (10) days from date of contract, to be subject to the 'Rules Governing Cash Margin Calls' as printed on back hereof. "Manifest errors excepted. "Merriam & Millard Co., Per "Rules Governing Cash Margin Calls. "Regulation 16. On purchase or sale of grain, feeds, or seeds, for which shipment or delivery extends beyond ten (10) days from date of contract, said contract shall state that either buyer or seller may call for margins to the market, and release such margins to the market until final adjustment has been made; and all such contracts shall contain the following: "First. It is agreed that either party to this contract may call for a marginal deposit to the "Omaha banking institutions authorized by the board of directors as depositories for margins: Omaha National Bank. United States National Bank. First National Bank. City National Bank. Merchants' National Bank. Corn Exchange National Bank. Nebraska National Bank." The contract was indorsed on its face, "Accepted," and signed by the appellee, T. A. Cole. Не Appellee, among other things, testified: "How I happened to enter into this contract, I never gave it a thought and didn't know anything about it.. * * * I was working over at Frisco in a house that I owned, and about 2 o'clock, on the 1st of September, Mr. Shrader came in where I was at work, and he said, 'Cole, don't you want to make some money?' and I said, 'Certainly, I would like to make some money,' and he said, 'I can put you onto something where we can make some money.' told me he had an oat deal, and I told him that I didn't know anything about it, and I said: 'I will just trust it to you; you have been handling grain here.' And he said: 'Now, Cole, I will handle this deal for you, and you will never have to touch an oat; you will just be buying it like you were buying spot cotton, but you will never have to touch an oat.' He told me that I would have to put up $300 on 15,000 bushels, and he said, 'I will phone it in to Galbraith,' and as I started home that evening I gave him a check for $300, and in a day or two these papers came back, and they were signed up, and I never erated a large terminal elevator at Omaha, buying, storing, and selling grain; that the contract hereinbefore set out had been mailed direct to T. A. Cole at Frisco, and was by him executed and returned to the company by mail; that T. A. Cole at no time furnished shipping instructions or accepted the oats under the contract prior to December 31, 1913; that the oats were held in storage for the to Shrader to handle that for me. I never paid any attention to the matter, so I got a letter then from Merriam & Millard, stating that they wanted a margin, and I went and called Fount up then, and I said: 'Fount, this here thing looks rocky to me. I don't know anything about it, and it looks rocky to me.' And he said: would have nerve, Cole; I would stay with it.' I said, 'I went into it on your statement, and if you think there is a chance for me not to lose out, I will just take your advice,' and I put up $400 or $450 more and it rocked along. Now, I had bought a lot of cotton from my rent-account of Cole after December 31, 1913, uners, and it laid out in the rain, and I was in til March 16, 1914, upon which date the Merhard shape, and I went to Fount and said, riam & Millard Company received notice that 'Fount, I want you to get me out of this, IT. A. Cole refused to have anything further want to get out of it,' and he said, 'I will do all I can for you,' and I went down to see Mr. Gal- to do with his contract; that the oats were braith and told him that I wanted to get out thereupon sold by the Merriam & Millard of it, and he said, 'I will take the matter up, but Company for the account of T. A. Cole at I haven't got a thing in the world to do with the average price of 38 cents per bushel at it,' and then I just set down and wrote those fellows that I had turned this matter over to Omaha; that the proceeds of the sale plus Sullivan & Hill. ** ** the margins placed by T. A. Cole with the "If Shrader hadn't told me that I wouldn't secretary of the Omaha Grain Exchange, have to handle an oat, I wouldn't have made the deal. I went into this deal because Shrader $750, plus $1,350 in adjustment of freight, came to me, and I thought he was a friend of was credited to the account of Cole, leaving mine and it was going to make me some money a balance due from Cole to the appellant comand that I need not to be bothered with it. It wasn't my intention to have one actual oat pany under the terms of the contract in the shipped to me, because I didn't have any place amount for which the suit had been infor oats. I wasn't in the grain business or mill- stituted. ing business. I am a farmer by occupation; am a farmer now, and was then. The depositions were to the further effect "Mr. Shrader and I didn't buy the oats to- that all of the appellant company's business gether; Shrader didn't have anything to do with was transacted from its office in Omaha, Neb., the oats. I didn't buy any oats with Shrader; that being the only office maintained by the I think Mr. Shrader bought some oats beforewhen he came in he said, 'I will put you on-company; that the company did not transact to a deal where you can make some money,' and does not transact business in the state of and he told me that he had bought some of Texas, all transactions with Texas firms bethem, and I said, 'If you think I can make some ing conducted from the Omaha office; that money, I will take some.' I don't know whether or not it looked like at that time oats were the company does not deal in futures nor are going up; I wasn't posted on the market, but its contracts gotten up for the purpose of conShrader said he thought they were going up. cealing the real intent of the parties; that As to whether it didn't look like the cotton from September 4, 1913, to December 31, 1913, market was going up, too, at that time, will say I don't remember about the cotton, whether they actually had on band in their elevator at it looked like it was going up or not. It is Omaha from 265,700 bushels to 313,000 bushtrue I was buying some cotton that year and els of No. 3 white oats; that on Decemwas holding it. It is true I bought some oats, too; the only oats I bought, however, was on ber 31, 1913, the company had in said elethis deal here, the oats I bought from Merriam vator 245,000 bushels, and at all times later & Millard Company. could, and would, have filled appellee's contract and shipped him the number of bushels of oats as therein called for had appellee given them shipping orders that would have enabled them to so deliver; that such was the intention of the company and the only reason no such delivery was made was that the company never received instructions from Cole as to when or where he wished the oats shipped, as provided in the written contract, and that the time had not expired on hisi contract when he notified the company that he would not fulfill his part of it and accept the oats at the contract price; that under the rules of the Omaha Grain Exchange each party to the contract under consideration was required to and did deposit with the seeretary of the Omaha Grain Exchange $750, which covered the deposit to be made under the contract up until the time Cole repudiated it. The depositions further disclosed that, in addition to the contract with appellee, the appellant company was also under contract for the delivery of No. 3 white oats to s "As to whether it is not a fact that if the price of oats had gone up I would have expected those people to deliver the oats to me, will say I didn't want the oats; I was dealing for the profit in the oats; I didn't want any oats, because I had no place for that many oats. Fount Shrader told me that I wouldn't have to handle the oats; he said, 'I will handle the deal for you.' As to whether it is not a fact that I expected to make a profit, will say that is why I went into it; he said I could make some money. I didn't want the oats. It is true that Merriam & Millard Company didn't mention anything about not delivering the oats in the con tract. Beside several letters which passed between the parties, all of the other testimony was by deposition on the part of witnesses who testified in behalf of appellants. Various officers and employés of the appellant company testified by deposition, as stated, to the effect that the appellant company was engaged in the business of buying and selling grain for cash at Omaha, Neb., and had been so engaged since the organization of the company in 1910 or 1911; that the company op |