Volume 113 — Texas Reports

sued the Waggoner Bank & Trust Co., the City National Bank and the Sagerton Hardwarev& Pur. Co. It recovered judgment against the last named, but not against either bank. Both Gamer Co. and the Hardware & Pur. Co. appealed. The judgment was reversed and rendered (166 S. W., 428) in favor of the Hardware & Pur Co. against the Gamer Co. and in favor of the latter against the Waggoner Bank & Trust Co., and the last named only applied for and obtained writ of error.

<p>Original application to the Supreme Court by Emma H. Burgemeister for writ of mandamus against Andrews as District Judge.</p>

<p>Agency — Sale—Commissions.</p> <p>An agent for sale of live stock who in good faith procured a purchaser with whom his principal entered into a binding contract for sale, for part cash and balance to be paid at a future date on delivery of the property, was entitled to his commissions on the sale, though the expected purchaser found himself unable to carry out the contract and effected a compromise with the seller releasing him therefrom. This rule is not confined to sales of real estate. (Pp. 522, 523).</p>

Question certified from the Court of Civil Appeals for the Second District, in an appeal from Tarrant County. The Supreme Court having referred the question certified to the Commission of Appeals, Section A for its opinion thereon, here adopts same as its answer to the question.

<p>3. —Supreme Court — Jurisdiction—Question of Fact.</p> <p>Where the evidence is sufficient to present a question of fact determined in the trial court, the Supreme Court has no jurisdiction to pass on a certified question as to its sufficiency, in view of the manifest weight and preponderance of the evidence, to justify the finding, that being solely for the Court of Civil Appeals. (P. 568).</p> <p>2. — Fraternal Benefit Society — Laws of the Order.</p> <p>Where the constitution and laws of a fraternal benefit society provided, as conditions precedent to liability on a membership certificate, that it should ha signed by the Consul Commander of the Camp and manually delivered to the beneficiary, who should himself sign the certificate and an acceptance slip attached thereto, none of which things were done, there was no liability for the death of the beneficiary, though all these would have been done but for the refusal of the clerk of the camp to deliver the certificate because he judged the beneficiary not to be in good health at the time, a condition forbidding its delivery, and it was found that he was in fact in good health. (Pp. 565-570).</p> <p>S. — Same.</p> <p>The liability of a fraternal benefit society must be determined by its constitution and laws governing such liability and accepted by the beneficiary, as the same are written. It is not in the province of courts to change them. (P. 570).</p> <p>4. —Case Distinguished.</p> <p>Pledger v. Sovereign Camp W. of W., 17 Texas Civ. App., 18, distinguished from this case. (P. 569).</p>