11 S.W. 1024 (Tex. 1889), Niagara Ins. Co. v. Lee

Citation:11 S.W. 1024, 73 Tex. 641
Opinion Judge:[73 Tex. 643] HENRY, J.
Party Name:NIAGARA INS. CO. v. LEE et al.
Attorney:[73 Tex. 642] Fowlkes & Looney, for appellant. Chas. I. Evans, for appellees.
Case Date:May 03, 1889
Court:Supreme Court of Texas
 
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Page 1024

11 S.W. 1024 (Tex. 1889)

73 Tex. 641

NIAGARA INS. CO.

v.

LEE et al.

Supreme Court of Texas

May 3, 1889

Appeal from district court, Mitchell county; WILLIAM KENNEDY, Judge.

Page 1025

[73 Tex. 642] Fowlkes & Looney, for appellant.

Chas. I. Evans, for appellees.

[73 Tex. 643] HENRY, J.

This suit was brought by appellees to recover upon an insurance policy. The policy sued upon shows that it was issued on the 1st day of September, 1882, in favor of T. H. Lee & Co. It appears that at the date of the policy T. H. Lee and his father, D. N. Lee, were partners using said firm name, and as such were the owners of the merchandies covered by the policy. Shortly after the insurance was effected, T. H. Lee sold his interest in the property of the firm to one C. N. Klauber, and the firm name was then changed to Klauber & Co. Indorsed on the face of the policy are the words: 'Permission hereby granted for change of firm name of Messrs. Klauber & Co.; loss, if any, [73 Tex. 644] payable to said firm,' signed by the agent of the insurance company. On the back of the policy the following indorsements appear: One signed by the agent of the insurance company, dated October 12, 1882, consenting to the assignment of the interest of T. H. Lee in the policy to Messrs. Klauber & Co.; one signed by T. H. Lee, also dated 12th October, 1882, assigning his interest in the policy to Messrs. Klauber & Co.; one signed by C. N. Klauber, dated 28th December, 1882, transferring his interest in the policy to D. N. Lee. On the last-named date, C. N. Klauber, by an instrument in writing, conveyed to D. N. Lee, for a valuable consideration, his entire interest in the stock of merchandise insured. D. N. Lee testified that he purchased this interest for his son, T. H. Lee, and that thenceforth the merchandise was the property of himself and son, who resumed business as partners, under their old firm name of T. H. Lee & Co.; and that at the time of the destruction of the property it, as well as the policy of insurance, was owned by himself and son, T. H. Lee, as equal partners. Plaintiffs' petition charges that when C. N. Klauber retired from the business he assigned his interest in the firm 'and in said policy to the said plaintiff T. H. Lee, whereupon these plaintiffs again became partners, and resumed the firm name of T. H. Lee & Co., and with the consent of defendant, indorsed in writing on said policy, and signed by its agent, D. R. Mason, became again the owners of said property and of said policy. That in indorsing the consent of the defendant in writing upon said policy, for the change of ownership of said property and of said policy from said firm of Klauber & Co. to said firm of T. H. Lee & Co., and for the change in said firm name by said D. R. Mason, through the mistake of said agent, the name of Klauber & Co. was inserted therein, instead of the name T. H. Lee & Co., as was at the time intended by plaintiffs and said agent.' The policy of insulance, among other things, contains the following clause: 'If the assured is not the sole and unconditional owner of the property, or if the interest of the assured in the property is not truly stated in this policy, or if any change take place in the title, interest, location, or possession of the property, (except in case of succession by reason of the death of the assured,) whether by sale, transfer, or conveyance, in whole or in part, or by legal process or judicial decree, or the title or possession by now or hereafter become involved in litigation, or if this policy be assigned or transferred before a loss, this policy shall become void, unless consent in writing is indorsed by the company hereon.' 'A particular statement of the loss shall be rendered to this company, at its office in New York, as soon after the fire as possible, signed and [73 Tex. 645] sworn to by the assured. And this company shall not be bound under this policy by any act of or statement made to or by any agent or other person which is not contained in this policy, or in any written paper above mentioned.' The papers before mentioned relate to the preliminary proceedings for obtaining the insurance.

When plaintiffs offered in evidence the policy of insurance, with the indorsements thereon, the defendant objected on the grounds: (1) Because of variance between the policy described in the petition and the one offered in evidence. (The exception specified in what the variance consisted, it being as above indicated.) (2) Because said policy shows, by the transfers indorsed on it, that it is the property of D. N. Lee, and not of T. H. Lee & Co. These objections were overruled and the policy, with its indorsements, read in evidence, which is assigned as error. There was error in overruling these objections to the introduction in...

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