"(1) The defendant company issued the policy described in the petition of plaintiffs, in the amount of $2,200, covering the items of property therein alleged, and that afterwards the property was, as alleged, destroyed by fire; that plaintiff made up and furnished defendant full proof of loss as therein alleged, and that the property was of the value at the time of the fire as alleged by plaintiff, and shown on schedule or list attached as an exhibit to plaintiff's petition, and that the damage by fire to the engine and boiler, complete, including steam and water fittings, was in the amount alleged by plaintiff and shown on said exhibit; and that on September 14, 1899, defendant denied all liability under said policy, refused to pay the claim sued on, and has never paid the same, and the amount now due the plaintiff therein is the sum of $2,354.
"(2) The gin plant in question was on October 5, 1898, purchased by plaintiff P. D. Harris from C. C. Epps for a total consideration of $3,200, of which was the cancellation of $900 and interest due from Epps to Harris, and the assumption by Harris of debts due by Epps to other parties, aggregating in all $3,200. The plant, including all machinery, houses, tools, repairs, etc., cost Epps approximately $4,000. The gin plant had been reasonably profitable for the two preceding gin seasons. The testimony as to the horse power of the engine is conflicting and unsatisfactory, and it cannot with reasonable accuracy be determined therefrom the horse power of the engine; but I find that the application of Harris for the insurance in question was in this, as well as in other respects, substantially true, and not false in a sense material to the risk. That in the sale from Epps to Harris the items of property were not separately priced or valued, but $3,200 was the lump sum, of which the boiler and engine would represent about $600 of the total consideration. The boiler in question was purchased secondhand by Epps; was overhauled and repaired by him and reset. There is no evidence as to how long it had been in use prior to the time Epps became owner of it. The engine in question had been operated by Kennedy & Husbands and by Harris prior to his sale to Epps, and it had been used much longer than three years. After Harris sold to Epps, the engine was reworked and renewed by him, and had been in use only two years after its renewal. The engine and boiler up to the close of the ginning season of 1898 performed their functions and furnished the motive power to operate this gin plant. One of the gin stands was new, and the other two were old gin stands, reworked and repaired to the extent of being practically new. The application as to the length of time the engine and boiler and gin stands had been in use was true, counting from the time of their being overhauled and reworked, but not true as to the engine and two of the gin stands, counting from the time these pieces of machinery were first operated. I conclude, however, that the application was substantially true on all these points, and not false in a material particular. In the purchase by Harris from Epps, the press would be reasonably estimated at $450, in view of the total consideration of $3,200. Epps had changed a single to a double box press, furnished new parts, and done considerable work thereon, which would give the press a reasonable value of $450, on a basis of $3,200 for the entire plant. In the application for this insurance Harris agreed that he would keep a barrel of not less than 40-gallon capacity filled with salt water, with two galvanized iron buckets to each gin, barrel and buckets to be kept in the gin room at all times. At the close of the ginning season of 1898 only two gin stands were being operated, and at that time the barrels with water and buckets were kept in the gin room, in accordance with the agreement; but after the ginning season closed, along in February, 1899, the water in the barrels froze, after which they would not hold water, and at the time of the fire, on August 11, 1899, the testimony shows that the barrels were incapable of holding water. That defendant charged a basis rate for gin risks of this kind, $3.50 per hundred, and added an additional sum for certain deficiencies, among which is No. 9, as follows: `Inadequate supply of barrels and buckets, $1 per hundred.' The policy sued on was issued near the close of the ginning season of 1898, and would have expired before the opening of the next succeeding season, and at the time of the fire the gin had not been operated since the close of the season in 1898. P. D. Harris, the owner, lived at Neyland, 200 miles from the plant in question, and the contract in question nowhere required Harris to keep a watchman at the plant; hence I find that the agreement with reference to the barrels
and buckets was not intended to be operative except during the actual operation of the gin plant, and they were not violated in a manner material to the risk. That Harris, in his proof of loss, was not guilty of false swearing. That in making up the proofs he sought information as to values from those experienced in the prices and values of such property, and made out his proofs with this aid; and, as to the Keating mortgage, Harris did not know at that time that it ever had existed. The proof showed that at the time Epps sold out to Harris the Keating Implement Company held a mortgage on the press in question to secure a debt of $75. Harris knew of the existence of this debt, and assumed it, but was ignorant of the mortgage. After Harris purchased from Epps, and before the policy sued on was issued, Harris settled off the Epps notes by giving to Keating his note instead, but did not renew the mortgage.
"(3) The several provisions of the policy and application quoted in the pleadings of both plaintiff and defendant are correctly quoted and form parts of the contract; hence it would serve no useful purpose to copy them in full in these findings.
"(4) F. V. Ende had been for a number of years prior to the issuance of this policy, and was then, the agent of the defendant company at Greenville, Texas, with full power and authority from defendant to solicit insurance on its behalf, take applications therefor, issue policies, except gin risks, as stated below, deliver policies, examine and inspect risks, receive and collect and transmit premiums of insurance. That the said F. V. Ende was in all respects the general agent of the defendant, unless by the terms of the contract his authority was limited with reference to gin risks. As to gin risks Ende had authority from defendant to do all these things mentioned above, except to write or issue the policy. This was done by the state agents of the defendant at Dallas, on application solicited, taken, and sent in by Ende or under his authority, and after the policy was issued it was sent by the state agents to Ende, who delivered same and collected premiums therefor, and transmitted the same to defendant's state agents. W. F. Balthrop was a solicitor working for Ende, and the application in question was written by Balthrop at the instance and under the employment of F. V. Ende; and the same showed upon its face that Balthrop, as solicitor, took the same and inspected the risk. The clauses in the contract intending to limit the authority of Ende with reference to gin risks are quoted correctly in defendant's second amended supplemental answer, filed October 16, 1900; and the same are referred to as a part of this finding, instead of writing them here at length.
"(5) On August 15, 1898, while C. C. Epps was owner of the properties in question, he made, through F. V. Ende, application in writing to defendant for $2,200 insurance thereon, which was granted, and the insurance issued to him for one year in that amount. At the time this application was taken, Epps, together with Lowenstein, who was interested as a lien creditor, went to Ende, and then explained to him fully all about the property. They told him that the engine and two gin stands had been operated by Kennedy & Husbands prior to the time Harris purchased from them; that Harris sold to Epps, and afterwards Epps had the engine repaired and renewed; that the gin stands had been reworked and renewed by Lowenstein; that a new gin stand, complete, had been added by Epps, and another secondhand boiler purchased, repaired, and reset, and the press changed from single to double box, with new parts added, such as shafting, belting, elevators, etc., making the plant complete. Also they told Ende of all incumbrances existing on the property, including the Keating mortgage of $75 on the press,—in fact, told Ende, in good faith, the history, age, and condition of the property; and, from the answers there given, Ende wrote the application which was sent in to defendant's general agents at Dallas, who issued the policy and sent it to Ende, who delivered same to assured, collected the premium therefor, and transmitted same to defendant's general agents.
"(6) When Harris repurchased the property from Epps on October 5, 1898, he sought to have the Epps policy transferred to him; but, instead of indorsing transfer on the policy, defendant required a new application to be made by Harris, which was taken by W. F. Balthrop, solicitor, from Ende's office, and a new policy issued to Harris for the unexpired portion of the year for which the...
