*1 33G- premises. prove oral She 'offered agreement,' the court refused to hear but testimony ground that it tended to va ry the of the written contract evi terms warranty appellee. In denced her deed to had this the did err. It would court have showing that, although the effect she made warranty appellant, and a full clear title to reserved, of that written she hаd tract, outside con rights possession prop certain unconditionally erty she sold. It permitted would have been error have warranty to tack on such condition to her seems,
deed: Such verbal contract face, utterly improbable. to have been county Whether the court entertained testimony or not not made known to court, nor would it mattеr. No has been cited which the contention of sustains appellant. hand, On the other there are de cisions of our state courts that sustain the ruling judgment ain forcible detainer case would res not be adjudicata trespass try Talley (Tex. title. Hickman v. Reavis, House v. 633, 35 S. Tex. W. 1063. Anderson, Frank S. of Galveston and Wil- Pridgen The case of v. Furnish liams, Lee, Kennerly Sears W. and H. directly рoint Blades, Houston, both Se- upholding judge the action district curity Nat. Ins. Co. refusing agree to admit as to the Peden, ment W. M. and Robert claimed F. both made Johnson appellee Houston, appellants H. with when she sold the L. appellee. R. Le R. Master. King, Cox, will affirmed. Wood & Morrow H. E. Houston, Bondies, W. Porter Dal- las, appellee Commercial Standard Co.
GRAVES, Justice. brought by The suit was H. L. Master, widow, and Mrs.' R. LeR. respectively, severally against Commercial Standard FARRINGTON et al. v. COMMERCIAL Company Security National Fire Insur- . STANDARD INS. CO. et al insurers, for a fire under loss No. 9935. separate policies insurance, their two of fire $3,500 value, each for one face each Appeals of Civil Court of Texas. policies covering both the same Galveston. Plaintiffs, however, risk. did not seek a March recovery, recovery against a full double May Rehearing Judg- Denied or the other of the one defendants. plaintiffs ment rendered for the for the- $3,500, apportioned full amount of $500 $3,000 L. H. R. to Mrs. Master, together interest, against defendant Company, National Fire Insurance they but that
337 policy Security Insur- of the Commercial Standаrd National Fire defendant Insur- Company. judgment, Company, conclusively ance ance From the defend- that showed Security policy Mrs. ant Com- Le Master National Eire Insurance surrendered said and contending pol- pany appeals, mainly cancellation, judg- that its to its consented and said icy duly pursuant should, therefore, no- ment had been cancеled to and cause be affirmed Farrington, according tice its terms as to both as to and claim- reversed and rendered fire, plain- as ants before the and Le likewise Mrs. Master. however, appeal, insisting, that tiffs That, conclusively “5. if the evidence judgment be correct and should below was Farrington shows that did surrender and affirmed. Security consent to the practical Company’s The its main features cause is National Fire Insurance ly and, counterpart conclusively if Fund Ins. Co. of Firemen’s the evidence does not Farrington S.W. show et al. that Mrs. Le Master surrendered said (2d) 1077, having policy grown cancellation, out of the and consented to that it conflicting same tially been tried on was at transactions and essen least toas whether she controlling policy cancellation, and, same facts. surrendered said therefore, judgment said and cause should insurance follow- Farrington, as affirmed and reversed ing pleadings prosecution 'and both and remanded as to LeMrs. Master. below, purport the cause to that likewise appeal: “6. judgment That plaintiffs contends whatever may have been entitled to should have been “1. That evidence uncontroverted against defendant, Commercial conclusively Standard In- Farrington showed that and Company, policy surance whose was substi- each, through Le agents, Mrs. Master their Security tuted for that National Fire In- policy Security surrendered Company, surance and such substitution Company was and for cancellation Insurance loss, by plaintiffs before the and was ratified cancellation, judg- consented to such and no and Compa- Commercial Standard ment it. should have been rendered ny.” “2. That the uncontroverted evidence con- Agreeing contrary rather with the clusively Master, conclu- that Mrs. Le showed sions of learned trial court in agеnts, refus- policy first surrendered ing appellant company’s requests, primarily Security Compa- of- National Fire Insurance peremptory favor, instructions in its ny and for cancellation as to her interest and alternatively special for submission of is- thereto, consented and if should be the, jury, embodying sues to conclusively consecutive held the evidence did not sequence quoted contentions, its several and show also surrendered the then, upon the conclusion that no interest, issues policy said for cancellation as to his fact of them were raised evidence, the evi- least, at an issue of such raised dence, withdrawing jury he, cause .through agents, as to whether surren- rendering judgment and the adverse policy above as to dered the said for cancellation described, pre- should, therefore, all these interest, judgment overrules and sentments affirms plaintiff, Master, so en- Mrs. be rendered that Le tered below. defendant, should Se- curity National Fire Insurance pleadings undisput Under and the and that said cause presented ed facts as declared and plаintiff said between defend- appellant company itself, ant should be reversed and remanded. whether there or not had been cancellation “3. That if evidence does conclu- policy wholly of the sued on was in turn de sively plaintiffs show that both surrendered pendent upon whether or not either Burns & policy National Fire Insur- Co., Goliad, the local insuranсe or Company cancellation, or that at Joseph Weardon, there, of the bank the one did, least Master then evidence other, agent or been the of the as conflicting and raised issues of fact Farrington, sured and, cancelled, to whether such ,to waive such notice of cancellation and therefore, judgment and cause as sаid to both substitute the Commercial Standard’s plaintiffs said defendant should be re- appellant company. for that of As the versed and remanded. properly San Antonio court held in the Fire That, conclusively Case, supra, “4. if Fund evidence men’s cited was imma persons not surrender and terial one of shows did whether just agent did not consent to the cancellatiоn of the named to, just dominating purpose, referred the cases for such a because LeMrs. holding Farrington, East Texas is ruled he case had been s Blum, thereunder; S. W. no Tex. Fire 572; Co. v. agent Co. v. Continental in relation Alliance Insurance hers bind him could pertinently *3 285 S. deter Gin Co. Com. W. that court further it. As pol High authority School Gulf Ins. Beckville Rural over the Co. no v. “She had mines: S.W.(2d) (Tex. Aрp.) might appear in 828. There except 38 icy, interest Dist. Civ. as her instance, being in fire, de no instructions this her could be interest a case of stroyed agen although by.payment of her mort he the discretion of the left to time at merely company by cy in true, or com gage. as the the contended choice it be If panies appellant-should comрany, not his insurance in which the total of surance only requested Farrington placed, not Mrs. it is be to Le would be held liable damaged favor, agency coverage procure the by her be to the property instance, keep in Far- at liable to not to first ,was -least cause rington it, sum found sured. the full complain a Farrington could because alonе Furthermore, by the terms of this given part some one to his only, upon itself, its Mrs. Le Master was com heard to be Neither can else. plain face, position a mere to restricted loss, proof to furnish a failure only protection ex- to with liability.” Other authori it when denied might appear at her it tent of any particular interest as Co. Phœnix Ins. are the same effеct' ties to stage, further she was but (Tex. Civ. & Bank Trust Sav. v. American expressly any right insure to therein denied 819; v. App.) Ins. Co. Connecticut 248 S. W. property except herself, as- case 776; Ky. 378, al., 291 S. W. 218 et Caummisar so, Farrington had to failed do 'sured Liverpool, Ins. & London Globe Glasscock v. contingency happened. never App.) 281. (Tex. W. Civ. 188 S. Co. fully Since this record contains the de Security Company’s By terms of testimony tailed of all the to witnesses as upon, as- as as of the well herein sued Farrington’s just transpired parties, what between these & to Bums instructions sured this, court in the conclusion clear that the only agents, in- issuing Co., finding trial able court was correct that it the' insurer himself as to be for surance conclusively,. undisputedly, appeared if not payable merely expense, loss therefrom that neither Burns & Jo Co. nor mort- Master as in favor of clause seph Weardon were interest, only gagee extent of respects attempted can aggregate it' amount of Security Company’s policy cellation of the year; $10,000, and to run for one there its-place substitution in that is 'agreement understanding nо nor appellee; sued wherefore it likewise agency keep either his appearing, presumptively having so been property accept insured thereafter or to below, found that-no notice of such of it without cancellation edge his knowl- attempted cancellation or substitution had consent, and without notice to him. ever, givеn the assured things appears partly Siiic'e state of from prior fire, Security Company’s pol partly the face of the itself icy canceled, was never nor did that of the the uncontroverted ings -the deal- appellee become'-effective. Alliance Insur it, parties, between the matter (Tex. Co. v. Continental Gin Co. Com. distinguishes this case from thosе re- 257; App.) 285 S. W. Gulf Insurance Co. v. upon lied such as Nigh (Tex. Beckville Rural School District (Tex. Union Ins. Dalton Norwich Fire v. Soc. S.W.(2d) App.) 828; East Texas Fire Civ. 38 230; App.) S. W. 213 Com. Blum, v. Insurance Co. 76 Tex. 13 W. S. (Tex. App.) 367; Civ. Co. v. Oliver 204 S. W. 572; Connecticut Co. v. Caummi Ray (Tex. American Ins. Co. Great v. Son Ky. al., 776; et 291 S. W. Phœnix sar 218 App.) 223; Security 15 Na- Com. Savings American Trust & Ins. Co. v. Bank (Tex. Ins. Co. v. tional Fire Gulf Ins. Co. App.) (Tex. 248 S. Civ. W. Firemen’s S.W.(2d) 17; App.) 41 and Hanover Insurаnce Co. et Fund al. Turner Fire Ins. Co. v. Civ. Rather, S. W. in- absence of Miller, 268, opinion by only Hall v. structions the assured here to S. W. distinguishable court, filrst in that insure the mort- instance but accepted keep insured, gagee first as was the there cancellation of a state of fact one, taking throughout policy, second out dence lie himself the record otherwise that рaid and, in full none such at after the latter had been time existed. sought company issuing it, to hold the Appellant company’s further contention company policy it issued. first proof that no claim on loss nor account that, the assured between This held thereof was rendered to within the nine- no had been there the initial ty-one days fire, required by after the pоlicy; she of the first abortive, terms of its for the reason permitted to recover have been would liability; hence, that it denied all as the San company hut amount thereof from full companion Antonio court determined mortga- owed the she that what for gee Co., supra, case of Firemen’s Fund inwas paid the collection had been complain nо condition account. *4 by policy the latter. the second taken out accordingly already The affirmance has liability accepted appellee had If the here been entered. policy attempted substitut- its under so Affirmed.- appellant of the ed that mortgagee paid the had Rehearing. On Motion for $3,000, instance, then the loss of in prinсiple arguments The briefs and able coun of. ap- have Miller would of Hall v. support appellant Security in sel of plied, those circumstanc- in since Company’s rehearing motion for all have again what recovered not have es could carefully considered, been but this already paid and for in his behalf thus been disposi constrained to adhere its former his account. n having tion of the cause as been correct. mortgagee conclude, that, Perhaps a mere better, it however, So we would' have been cannot, the policy without had it of insurance then in a knowledge written further to this extent on assured, appellant’s the the of consent contention reiterated now to the original party any of principal recovery against side pol that on one effect icy it on its insurance insurance, of release was contract waived the failure of the policy, liability parties that company proof under its to furnish it of loss from the com in different ninety days a fire and rewrite the insurance thereunder within after it assured, undisputed pany to bind in such manner occurred. The ture, facts on that fea volens, part. material, in nolens on so far as were these: overwhelming days’ showing In of No view in five notice of intention to cancel policy, provided the record as a acting that Weardon thereof, whole was not in the face agent Farring- given party as the was in advance of the let- any bringing respect, in out on cross- ter ton wrote in March to its Goliad, accomplished a examination of as witness which statement it contends “guessed” claimed; further, that the effect he he must the assured trial, previously during given answer to in- was never at time no- subject, tice, quiries touching acquire knowledge, that nor made the did he “Well, taking- policy existed, Mr. Wеardon statement: was ever until attorneys I end it me and left that care discovered that fact in November me, up following to Mr. Weardon it for of 1931 the occurrence of the fire care.of policy. fig- April 1931, whereupon, I response and then Weardon had Mr. 1st of ought right they ured be all because he the to advice to it from them that had heard only policies having its compa- man who held man about opinion ny attorneys denying not in liability that ever did see it” —does our wrote the upon specific raise circumstances issue of fact under the in suit contrary. ground prior This that it had been canceled to the appellee here, having building .been fire. record Inasmuch as the and its con- objec- by the trial сourt on excluded tion; tents covered fix- constituted furthermore, upon totally it was offered as in im- tures and were de- Farrington’s prior peachment stroyed, of Mr. evi- whatever value re- dence, interrogated maining, appellants’ but he was under S. article liquidated trial to whether or not statement therefore was became a demand true, testify was; appertaining property, nor did he it as where- to real “guess” proof necessary, his mere that he had made it and no of loss fore was the dif- upon insufficient to an issue of raise fact on ferent rule insisted any agency being applicable Weardon" the circumstances. Arti- Statutes; him the face of the volume of direct Annotated Civil evi- cle Vernon’s S40 rеsidence, in the was not of his which Export Axe Co. v. controverted, supplemental petition, Vines Ins. Co. v. plaintiff urged spe- exceptions, general cial, plea; overruled, being these unneces- deemed Further discussion' plea changed, sustained venue
sary, be overruled. motion will plaintiff appealed. Overruled. having alleged that, Plaintiff contends writing promising performance contract PLEASANTS, J., dissents. O. county, in Dallas defendant’s formal statu- tory plea privilege containing simply con- insufficient, clusions of overruling plaintiff’s excep- court erred in tions thereto. We overrule this has contention. The rule definitely plea statutory settled privilege, in cases the nature of the one consideration, under not controverted set- DAVES. CO. v. SCHOELLKOPF ting up up- under oath the fact or facts relied No. *5 filed,' on to confer venue where the suit is Appeals Dallas. Texas. of Court of Civil changed. should be sustained and the venue April 14, 1934. n largely Plaintiff relies on our decision Co., S.W.(2d). Barnum v. Lancaster Hdwe. 1103, contending plea of that “we held that subject privilege, statutory form, is deny allegations demurrer if it fаils to of petition meaning showing of The venue.” language opinion used in the Barnum- readily Lancaster is understood when the nature of case is considered. The suit a creditor of the estate administratrix, of which venue was fixed county in the statute where the estate was (subdivision administered art. thus, question S.); one of venue was purpose ascertaining of for the of suit, cognizance the nature of the we took allegations plaintiff’s petition. of (Tex. Cox Brown 848, Civ. 849; Lloyds Lloyds America v. South- west Insurers Civ. Commercial Standard v. Lowrie App.) S.W.(2d) Yenue of certain named actions by statute; authorized fixed or such cas law; es, tflie of venue is one of whilst others, depend upon venue made to conferring existence of fact fаcts same pending. So, court where the cause Dixon, Leffingwell Dallas, appel- & Case, regardless in the Barnum-Lancaster lant. administratrix, the residence of the the stat Terrell, Porter, appellee. Bond county authorized ute suit where the being administered, estate was hence venue LOONEY, Justice. dependent upon proof was not Schoellkopf Company, corpora showing exception or facts to exclusive Daves, tion, I-I. a resident sued B. of Kauf venue one’s It residence. county, goods, follows, therefore, man wares, to recover value in cases venue where by statute, plea privilege and merchandise sold and delivered. is fixed a formal plea privilege tried, 'Defendant filed to be sued tenders no issue fact to be