1877. March Term. Utterb'k's adm'r The court is of opinion, for reasons stated in writing and filed with the record, that the deed of trust executed by Charles H. Utterback on the 2nd day of February 1859, for the benefit of Armistead Utterback, constitutes a subsisting valid lien the upon lands therein mentioned, and that the same has priority over the deed of trust executed on the 5th day of July 1866, for the benefit of Edward K. Cooper; and that the circuit court erred in holding that the said first named deed of the 2nd February 1859, upon the qualification of Charles H. Utterback, as administrator of Armistead Utterback, dec'd, ceased to operate, or exist, as security for the debt named therein. Therefore it is decreed and ordered, that the said decrees be reversed and annulled, and that the appellee Cooper pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here; and that the cause be remanded to the said circuit court, for further proceedings to be had therein in conformity with the principles of this decree. Which is ordered to be certified to the said circuit court of Fauquier county. DECREE REVERSED. V. Cooper. VOL. XXVIII-37 1877. March Term. Richmond. THE BROOKLYN INSURANCE Co. v. BIDGOOD. March 29. In April 1870 the B life insurance company, of New York employed W as their general agent, to act as such in a large defined territory in Virginia. W's duties, as defined in their agreement, were to solicit applications for life insurance policies, to deliver the same and collect the premiums thereon, also to constitute sub-agents throughout his whole field, such sub-agents to be under the pay and authority of W. And if the aggregate of commissions earned by W on policies taken by himself, and by the margin of his commissions over that of subagents on their work, should not amount to $3,000 for the first year, the company would make up the amount to that sum for that year. And W promised to devote his time, services, &c., to the interest of the company throughout the whole of the said territory, exclusive of any other business. In October 1870, the company having paid W $1,500 of his salary, and received only $423 of premiums from him, discharged him from his agency; and W then brought this suit to recover the balance of his salary. On the trial it appeared W had made very little effort to appoint sub-agents; and he contended it was not his duty to do so until directed by the company; and he said he did not travel through his territory because the company did not furnish him with money to pay his expenses-HELD: I. By the contract the appointment of sub-agents was committed to W, and he was not to wait for instructions from the company; and he therefore failed in his duty in not appointing them. 2. By the contract W was to pay his own expenses; and he again failed in his duty in not traveling through the territory assigned him to ascertain proper points for agencies and employing subagents. He was, therefore, properly discharged. This was an action of covenant in the corporation court of the city of Norfolk, brought by William J. Bidgood against the Brooklyn Insurance Company, to 1877. March V. Bidgood. recover an amount which he claimed to be due to him for his services as general agent of the said company Term. in a prescribed part of Virginia. The pleadings in the case were very voluminous; but no question upon Ins. Co. Brooklyn them was considered by this court. When the cause was called for trial the parties dispensed with a jury and submitted the case to the court; and the court having heard the evidence, rendered a judgment in favor of the plaintiff for $1,694.75. The defendant thereupon took an exception to the opinion and judgment of the court, and applied to a judge of this court for a writ of error and supersedeas; which was allowed. The facts are sufficiently stated in the opinion of Judge Staples. Scarburg & Duffield, for the appellant. Holladay & Gayle, for the appellee. STAPLES, J., delivered the opinion of the court. This is an action of covenant brought in the corporation court of Norfolk by Wm. J. Bidgood against the Brooklyn Life Insurance Company of New York. The plaintiff's original declaration contained two counts, to each of which the defendant demurred. The demurrer to the first count was sustained, and that to the second was overruled. The plaintiff then filed an amended declaration containing three additional counts. The defendant demurred to the whole declaration, and to each of the three counts. It also demurred to a part of each of the three counts, and pleaded to the residue. It also filed seventeen special pleas in writing: upon which issues were joined by demurrers, special and general replications. This March 1877. court has laboriously looked through all this mass of Term. special pleas, demurrers and replications, only to see that every defence they suggest could have been made, and the merits of the case fully presented, upon the pleas of covenants performed, and non damnificatus. Brooklyn V. Bidgood. The points of controversy are few and simple, turning almost exclusively upon a proper construction of the language of the covenant. On the 25th day of April 1870, the defendant appointed the plaintiff its general agent for that portion of the state of Virginia embraced and bounded on the south by the James river and the Blackwater river, on the west by the Blue Ridge, on the north by the Potomac river, and on the east by the ocean. It being understood that his duty as such general agent shall be to solicit applications for life insurance policies, to deliver the same, and to collect the premiums thereon, or any other moneys for said company; also to constitute sub-agents throughout his whole field; such subagents being under the pay and authority of the plaintiff. And it was further agreed that if the aggregate of commissions earned by plaintiff on policies taken by himself and by the margin of his commission over that of sub-agents on their work, shall not amount to the sum of $3,000 for the first year, the company will make up the amount to that sum for said year. Further in consideration of the terms and agreement mentioned, and territory granted, the plaintiff agreed and promised to "devote his time, services, energies and abilities to the interest of the company throughout the whole of the aforementioned territory, exclusive of every other life insurance company or other business, faithfully, honestly, industriously." There are other provisions in the contract, but they are not very material to the present inquiry. 1877. March Term. V. Bidgood. The defendant, on the 26th of October 1870, revoked Brooklyn the agency and discharged plaintiff from its employ- Ins. Co. ment. It had, however, in the meantime paid him the sum of $1,500, one-half of the agreed compensation for a year. The plaintiff brought this suit for the balance of $1,500, claiming that he was discharged from the service of defendant without sufficient cause. The first ground of contention relates to the provision of the contract for the appointment of sub-agents; the defendant insisting that the plaintiff failed to make such appointments according to the true intent and meaning of the contract. The plaintiff admits that he appointed agents only for a very small number of the counties embraced within the boundaries of his territory. According to his own statement, he appointed seven sub-agents for some half-dozen counties lying contiguous to the city of Norfolk. He made no appointments for the region of country bordering on the state of North Carolina, or for the tier of counties at the foot of the Blue Ridge, or those on the Potomac, or for the cities of Richmond, Petersburg, Lynchburg, Danville, Charlottesville, and the section of country surrounding them. He did not even attempt to make such appointments. The reason for this failure is, that the contract only required him to establish such agencies when and where he was directed by the officers of the company; and that he was not at any time directed by the company to appoint such agents. We are of opinion that the covenant does not admit of any such restricted interpretation. The provision in question is, that the duty of the plaintiff, as such general agent, shall be to solicit applications for life insurance policies; also to constitute such agents |