Northern Assur. Co. v. City Sav. Bank

• Decision Date: 11 May 1898
• Citation: 45 S.W. 737
• Parties: NORTHERN ASSUR. CO. OF LONDON, ENGLAND, v. CITY SAV. BANK.
• Court: Texas Court of Appeals

45 S.W. 737

NORTHERN ASSUR. CO. OF LONDON, ENGLAND, v. CITY SAV. BANK.

Court of Civil Appeals of Texas.

May 11, 1898.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by the City Savings Bank against the Northern Assurance Company of London, England. From a judgment for plaintiff, defendant appeals. Reversed.

Dyer & Dyer, for appellant. Scarborough & Scarborough, for appellee.

FISHER, C. J.

This is an action by the appellee against the appellant on a policy of insurance for the sum of $700 on a certain building situated in the city of Waco. The defendant pleaded that it was not liable on the policy, because the assured had transferred the property covered by the policy, without its consent, in violation of a stipulation to the effect that the policy shall become void if any change takes place in the interest, title, or possession of the subject-matter of insurance. Judgment below was rendered in favor of the appellee for the amount sued for. The case below was tried upon the following agreed facts: "It is agreed between the parties to this suit to perfect an appeal on behalf of defendant, as follows: (1) That there be incorporated in the record plaintiff's original petition, defendant's first amended original answer, plaintiff's first supplemental petition and defendant's first supplemental answer, the judgment entered in this behalf, and this agreement. (2) It is admitted that the judgment rendered in this behalf is correct, and has been properly rendered, and ought to be affirmed, unless the same be reversed upon the following stated facts, viz.: First. It is agreed that the policy of insurance sued on in this case, and which was in evidence by plaintiff, contains, among other provisions, the following provision: `This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if any change, other than by the death of the assured, take place in the interest, title, or possession of the subject-matter of insurance, whether by legal process or judgment, or whether by the voluntary act of the insured or otherwise.' Second. Said policy of insurance sued upon, and upon which judgment was rendered in this behalf, contains the following additional provision, viz.: `This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or...