"The Court of Civil Appeals of the Third Supreme Judicial District of Texas, as preliminary to certifying the hereinafter stated questions, and as part of this certificate, states that the above styled and numbered cause is now pending in the Court of Civil Appeals of the Third Supreme Judicial District, on appeal from the county court of Bastrop county; that the suit was brought by the appellee, Brannon, in the county court against appellant, on a policy of insurance covering the corn and hay located in a certain building which was destroyed by fire on October 17, 1903. The amount sued for was $975, and verdict and judgment in the court below was in appellee's favor for $460.45. Plaintiff's amended petition, on which the case was tried, substantially alleged that on the 2d of October, before, and afterwards he was the owner of 1,600 bushels of corn and 700 bales of hay, and that on that date the defendant issued its policy covering the same, to an amount not exceeding $975, $650 on the corn and $325 on the hay, that on the 17th day of October the property was totally destroyed by fire
notice of loss by plaintiff, payment of premiums, and demand of payment from the company for the value of the property destroyed. The petition made the policy an exhibit thereto. The policy described the property as being located in a two-story log building, while occupied as a barn. It was further averred in the petition that the agent had been informed as to the location of the corn and hay sought to be insured, and that he, in writing the policy, through inadvertence, carelessness, or mistake, misdescribed the building in which the property was located; that if the misdescription was not made through inadvertence, carelessness, or mistake of the agent that it was fraudulently made by the agent for the purpose and with the intention of defeating a recovery on the policy in the event of a fire; that at the time plaintiff applied for the policy he gave the agent the correct location of the property; that the plaintiff accepted the policy in ignorance of the misdescription, and did not discover the mistake in the description until after the fire, and the petition contains this averment: `Plaintiff further says that the building in which said corn and hay was located is described in said policy as "the two story wood roof log building, while occupied as a barn, and situated one-half mile west of Bastrop, Texas," whereas, in truth and in fact, said corn and hay was at the time of the issuance of said policy, and at the time of the occurrence of said fire and destruction of said property, located and contained in a wood-roof negro cabin, known as the "old kitchen," which was distant about fifty yards from the wood-roof log barn described in said policy.' The petition concludes with a prayer for judgment for the value of the property, with interest and costs, and for general relief. There was no prayer or request made for reformation of the policy on the ground of the mistake or fraud in the description. The defendant answered by general and special exceptions and general denial, and pleaded the provisions of the policy relating to any misrepresentation and breach thereof by plaintiff; that the policy covered corn and hay while in the building therein described, and not elsewhere, and that that building had not been burned or damaged by fire; that the plaintiff had the policy in his possession and was guilty of negligence in not reading the same, and discovering the mistake, if any, in the location.
"We find the following facts: That on the 2d day of October, 1903, the policy sued on was executed and delivered by the appellant company, through its agent A. B. McLavy to the appellee, R. O. Brannon; that it insured the property against loss and damage by fire to the 2d day of October, 1904, and provided as follows: `To an amount not exceeding $975 to the following described property while located and contained as described herein and not elsewhere, to wit: None on the two-story wood-roof log building with adjoining and communicating additions, while occupied as a barn and situated one-half mile west of Bastrop, Texas; $650 on corn in the ear therein; and $325 on hay in bales therein.' This description is written on a separate slip, which is pasted on the face of the policy. This policy contains the usual stipulation that the company shall not be liable beyond the actual cash value of the property at the time of loss, etc., and that the policy shall be void, if the insured have concealed, misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after loss. The evidence justifies the conclusion that the contract of insurance was made with the agent of the company, and that he had the authority to make the contract and to issue the policy. The insurance agent, before and at the time that the policy was issued, was informed that the corn and hay desired to be insured was located in the negro cabin, or old kitchen, which the evidence shows was about 50 yards from where the barn described in the policy was located. And upon this branch of the case, while there is a conflict in the evidence, we are justified from the facts in concluding that the agent knew that the corn and hay sought to be insured and desired to be insured by the plaintiff was in the negro cabin, and not in the building described in the policy, at the time that the agent executed the policy, and at the time that he delivered it to the plaintiff or to the father of the plaintiff for the plaintiff's benefit, and at the time the premium was received by the agent and paid to him. The building actually described in the policy was not destroyed by fire, but the negro cabin in which the corn and hay of the plaintiff was situated when insured was all destroyed by fire on October 17, 1903. The building described in the policy, at the time the contract of insurance was issued and the fire occurred, did contain some corn and hay, but it did not belong to the plaintiff. The corn and hay that was destroyed, located in the negro cabin, was all that was owned by the appellee at the time that the policy was issued. Although the agent of the insurance company that issued the policy, in effect, testified that it was his intention to insure the corn and hay located in the building mentioned in the policy, and that he would not have insured the corn and hay if he had known that it was located in the negro cabin, we are justified, in view of other evidence in the record, to conclude that the agent, at the time he issued the policy, had been informed that the plaintiff's corn and hay was located in the negro cabin, and that it was the intention and purpose of
the policy to cover the corn and hay owned by him, and none other, and that the agent in describing the building in which it was located made a mistake in writing the description in the policy, and that the policy should have covered and described the corn and hay located in the negro cabin, instead of in the barn described in the policy.
"We also find that, when the agent delivered the policy, he stated to the plaintiff that it was all right; that the plaintiff accepted the policy without reading it, and did not read it or discover the misdescription until after the corn and hay had been destroyed by fire. The plaintiff's petition does not expressly allege that the insurance company is or was estopped by reason of the mistake of the agent, and his actual knowledge as to the true location of the property at the time that the policy was issued; but the facts as stated and pleaded are construed by this court as tantamount to averments alleging an estoppel against the insurance company to take advantage of the misdescription in the policy. The case upon the part of the appellee was tried in the court below and submitted to the jury by the trial court upon the theory that the insurance company would be estopped for the actual knowledge of the agent as to the situation and location of the property, and his mistake in misdescribing the same. It is contended by the appellant that there is no uncertainty or ambiguity upon the face of the policy with reference to the description of the property; that the...
