Fire Ass'n of Philadelphia v. Jones

• Decision Date: 17 March 1897
• Citation: 40 S.W. 44
• Parties: FIRE ASS'N OF PHILADELPHIA v. JONES.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

40 S.W. 44

FIRE ASS'N OF PHILADELPHIA v. JONES.¹

Court of Civil Appeals of Texas.

March 17, 1897.

Appeal from Gonzales county court; John S. Conway, Judge.

Action by N. E. Jones against the Fire Association of Philadelphia on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Affirmed.

McNeal, Harwood & Walsh, for appellant. Atkinson & Abernethy, for appellee.

NEILL, J.

The following statement of the nature and result of the suit is taken from appellant's brief: "This suit was instituted by appellee in the county court of Gonzales county on December 23, 1895, against appellant, to recover on a policy of insurance for $750. Appellee alleged, in substance: That in June, 1895, he entered into an oral agreement with one Lloyd Green to exchange certain lots, and in pursuance of said agreement he took possession of said lot so acquired, and placed valuable improvements thereon, and became the owner thereof, and that on the 19th day of November, 1895, he procured from appellant a policy of insurance on a frame building for one year, to cover loss by fire, and paid the premium, $18.75, therefor. In case of loss by fire within one year, of said building, the appellant was to pay appellee $750. That on November 27, 1895, said building was, without defendant's fault, destroyed by fire, and the policy of insurance was also destroyed with the building; and prayer was made for $750, with legal interest and costs. Appellant pleaded, in substance: (1) That the property destroyed by fire was not the property of appellee, but that one Lloyd Green was the owner of the property. (2) That the property in same was personal property, being a building erected on the lot of Lloyd Green by appellee with consent of the owner of the lot, and that said building was the partnership property of appellant and one Lloyd Green. (3) That appellee falsely and fraudulently represented in his application for insurance, which application was a part of the contract for insurance, that the title to the property was absolute in him, and that the cost of construction of the building was $1,000, when in fact the lot was the property of one Lloyd Green, and the building only cost $620; that by reason of these false representations the policy of insurance became void, and appellee had no right to recover. (4) That the policy of insurance provided that appellee should, immediately after the fire, give appellant, at its office in Philadelphia, full notice of the nature of the fire, and full particulars of the loss, which appellee failed to do. (5) That said policy provided, among other things, that appellants should not be bound by any acts, declarations, or statements of its agents, except as provided therein, and that appellant was not bound by any statements or acts of its agents before or after the destruction of the property. Appellee replied that, by its agent, appellant had consented to the valuation of the building, and by its agent, after the fire, waived the notice required in the policy of insurance. The case was tried by a jury, and on the verdict of the jury a judgment was rendered against appellant, in favor of appellee, for $750, with 6 per cent. interest thereon from December 16, 1895. After the overruling of a motion for a new trial, the appellant filed an appeal bond, and brings the case to this court for revision on the errors assigned."

The first three assignments of error assume that the insured building was personal property, and are based upon the proposition that when personal property is insured the three-quarter loss clause in a fire insurance policy is valid, and notice of loss of the property required in the policy is binding upon the insured, and should be complied with. The policy shows on its face that real property was insured, and not personal. And, as the assumption upon which the assignments are predicated has no basis, the errors assigned are left without anything to support them. If the facts showed the property was personalty, recovery on a policy insuring realty could not be had, and it was not necessary to plead the three-quarter clause to present the issue as to the character of property. If it was realty, the policy was a liquidated demand for the full amount of the policy, and the three-quarter clause would be unavailing.

The appellee testified that he acquired the land on which the house was built from Lloyd Green, by exchanging therefor a lot owned by him, and that immediately after the exchange, and before deeds were executed, each went into possession of the property received by him in such exchange, and improved the same; he constructing the building covered by the policy on the lot received by him. His title to the property when the insurance was effected was an equitable one, arising from the parol exchange, and his possession and improvements taken and made on the faith thereof. The testimony as to the facts disclosing this title was objected to by appellant because, prior to the trial, Green had made appellee a deed to the lot; for which reason it was contended that he could not offer evidence of an equitable title, because it had ripened into a legal title by the execution and delivery of the deed. There is nothing in the objection, and it was properly overruled and the testimony admitted. Under his equitable title, appellee held the property when it was insured, and to cut him off from proving such title would be to destroy his rights under the policy....