204 S.W. 1170 | Tex. App. | 1918
"Operation of Gin Plant. That the property described herein will be in active operation during the ginning season, and that no machinery on storage, or not installed for use in said gin, is covered under this policy."
The warranty clause contained an agreement that the breach of any of the undertakings therein should render the policy null and void, unless a waiver of such breach was indorsed on the policy, and extra premium paid for the increased hazard. The owner of the gin owned another gin situated within a mile thereof. On account of short cotton crop, he did not operate the gin which was insured during the cotton season of 1916. The evidence showed that, while the crop was very short, there was some cotton, perhaps about 50 bales, situated nearer this gin than any other, and which would have probably been ginned thereon had it been in operation. The ginning season opened in August and closed about November 1st. The fire occurred December 20th.
Appellant further insists that the policy was rendered void by reason of the following clause:
"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days."
Appellant's assignment with reference to this proposition is that:
The "undisputed evidence shows that the buildings described in the policy, and each of them, were unoccupied during a time when they were required to be occupied, and so remained for ten full days."
It is apparent from this assignment that appellant does not contend that the buildings should have been occupied at all times, but only "during a time when they were required to be occupied." The building being a gin, it was not in contemplation of the parties that it should be occupied, in the sense that any one should reside or do business therein. This reference to occupancy can mean no more than the building should be used for the purpose of ginning during the ginning season.
It is the contention of appellee that the promissory warranty as to ginning was not breached, for the reason that there was no ginning season during the year 1916, the period covered by the policy. In support of this he argues that, inasmuch as the evidence shows that only about 50 bales would have been ginned on this gin, it would not have paid to operate it, and therefore, as to that gin, there was no ginning season. We do not concur in this view of the matter. Appellee warranted that the gin should be in operation during the ginning season, and the fact that to operate it would have incurred a loss on his part does not change his obligation incurred by the warranty clause.
Appellee in the court below recovered judgment for $2,000. The judgment of the trial court is here reformed, so that appellee shall recover judgment for $1,500, the value of the machinery, with 6 per cent. interest from the date of the judgment in the court below, and that he shall take nothing by reason of the destruction of the gin buildings. As thus reformed, the judgment of the trial court is affirmed.
Affirmed in part, and in part reversed and rendered.