Sun Mut. Ins. Co. v. Texarkana Foundry & Machine Co.
| Decision Date | 07 December 1889 |
| Citation | 15 S.W. 34 |
| Parties | SUN MUT. INS. CO. v. TEXARKANA FOUNDRY & MACHINE CO. |
| Court | Texas Court of Appeals |
Appeal from Bowie county court; S. D. LARY, Judge.
Vaugh & Leary, for appellant. F. M. Henry and Henry & Henry, for appellee.
This is the second time this case has been on appeal to this court. On the former appeal we held that the stipulation in the policy of insurance, as to the future occupancy of the building insured, to-wit, that it was to be occupied as a foundry and machine-shop, was a warranty that it should be so occupied. 3 Civil Cas. Ct. App. § 320. In 4 Wait, Act. & Def. p. 38, it is said: Such being the nature of the stipulation as to the use and purposes for which the building was to be occupied, the question in this case was, was the building so occupied? If not, why did not the assured so occupy the building? The evidence shows that nearly a whole year had elapsed from the issuance of the policy to the date of the burning of the building. If the assured had any good and sufficient reason why they had not complied with their warranty by occupying and using said building as a foundry and machine-shop, they should have shown it. Warranties are construed strictly as to their scope. Loud v. Insurance Co., 2 Gray, 221. Before a recovery could be had in this action, plaintiffs were required to prove— First, that they have complied with their warranty as to the occupancy or use of the building "as a foundry and machine-shop;" or, secondly, that such warranty as to the use and occupation of the building was waived by the insurance company or its duly-authorized agents. In this case it was proven that the building was never as it was warranted it should be used, and any effort on the part of the assured to so use it, if at all, is very meagerly shown by the evidence. On the contrary, it is shown that the building was used for entirely different purposes, to-wit, as a warehouse in which were stored wagons, buggies, hay, and shingles; and, furthermore, it is shown that the hay increased the risk of fire to the building. These acts of the assured in using the building for a different purpose, and increasing the risk to the same, operated as a forfeiture of the policy of insurance.
But while this is so, the rule seems to be well settled that whenever the insurer, with knowledge of any act of the assured that works a forfeiture, does any act that shows that he recognizes his liability under the policy as an...
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