Ellis-Smith & Co. v. Linebarger

• Decision Date: 18 April 1929
• Docket Number: (No. 2255.)
• Citation: 16 S.W.2d 830
• Parties: ELLIS-SMITH & CO. v. LINEBARGER et al.
• Court: Texas Court of Appeals

Page 830

16 S.W.2d 830

ELLIS-SMITH & CO. v.LINEBARGER et al.

(No. 2255.)

Court of Civil Appeals of Texas. El Paso.

April 18, 1929.

Rehearing Denied May 9, 1929.

Appeal from County Court at Law, No. 1, Dallas County; Paine L. Bush, Judge.

Action by Tom P. Ellis and another, copartners, doing business as Ellis-Smith & Co., against J. A. Linebarger and others.From the judgment, plaintiffs appeal.Affirmed.

Turner, Rodgers & Winn and M. B. Solomon, all of Dallas, for appellants.

J. T. Suggs, Jr., Geo. Sergeant, Hexter, Rice & Hexter, W. H. Flippen, and Tom Fletcher, all of Dallas, for appellees.

HIGGINS, J.

Tom P. Ellis and Dallas Smith, appellants, composing the partnership of Ellis-Smith & Co., sued J. A. Linebarger, L. J. Hexter, J. B. Adoue, H. W. Dudley, and the Groves-Barnes Lumber Company, a corporation, hereinafter called the Lumber Company.

The facts alleged in the petition, so far as necessary to the decision, in brief, are as follows:

Plaintiffs, as insurance agents, issued various policies of fire insurance in favor of Linebarger as owner upon different houses, to each of which policies was attached the standard mortgage clause No. 130, which provides: "Providing that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall on demand, pay the same."

In policy No. 194, Hexter and the Lumber Company were first and second mortgagees, respectively, and the premium was $43.89.

In policy No. 199, Dudley and the Lumber Company were first and second mortgagees, respectively, and the premium was $46.37.

In policies Nos. 196, 197, 198, 528, and 529, Adoue and the Lumber Company were first and second mortgagees, respectively, and the premiums amounted to $245.44.

Against Hexter and the Lumber Company, the mortgagees named in policy 194, it was alleged they agreed to be bound by the mortgage clause and orally agreed by independent undertaking of their own to pay plaintiffs the premium upon failure of Linebarger so to do.

Like allegations were made against Dudley and the Lumber Company, mortgagees under policy No. 199, and against Adoue and the Lumber Company, mortgagees under the policies in which they were named as mortgagees.

Judgment was asked against Linebarger for the total amount of the premiums due; against Hexter and the Lumber Company for $43.89, the premium on policy 194; against Dudley and the Lumber Company for $46.37; and against Adoue and the Lumber Company for the premiums on policies 196, 197, 198, 528, and 529, aggregating $245.44.

The plaintiffs...