4 Willson 50 | Tex. App. | 1889
Opinion by
§31. Fire insurance;■ condition as to occupancy of building insured; in suit upon policy plaintiff must prove what; case stated. Appellee sued appellant upon a policy of fire insurance and recovered judgment. In the policy it was stipulated that the building insured was to be occupied as a foundry and machine shop. It was not so occupied, but at the time of its destruction by fire and previous thereto was occupied as a warehouse for the storage of wagons, buggies, hay and shingles. Held:
§32. Waiver of warranty by insurer. Whenever an insurer, having 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 outstanding obligation, the forfeiture is waived and the policy remains operative. But a waiver of one’s rights under a contract, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on a performance of the contract. [2 App. C. C., § 381; Ins. Co. v. Lacroix, 45 Tex. 158.]
§ 33. Waiver by agent. When the agent of an insurance company has authority only to take applications and deliver policies, his knowledge of facts are not imputable to the company, so as to estop it from setting up a breach of the warranty expressed upon the face of the policy. [Wood, Ins., § 389.] An agent with general authority to make contracts of insurance and issue policies may waive forfeitures. [Id., § 391.] But in all cases the
Reversed and remanded.