East Texas Fire Insurance v. Dyches

Citations

• 56 Tex. 565
• 1881 Tex. LEXIS 175

Syllabus

<p>1. Petition on fire policy—Matters of defense.—A petition to recover for a loss by fire on a contract of insurance need not exhibit the policy nor set forth such of its terms as are in the nature of conditions subsequent, or in the nature of exceptions, or which are prohibitory of certain acts by the assured—all these being matters of defense.</p> <p>2. Same —Conditions sufficiently set forth in—Estoppel.— Although proofs of fire and loss are by the policy made conditions precedent, the petition is sufficient on this point if it alleges notice of the loss, and that on a day and at a place specified, proofs thereof were taken by A., the company’s agent, authorized thereto, and also authorized to settle and adjust the loss, who waived further proof, and promised to settle the loss. These facts would estop the company from setting up failure to furnish proofs.</p> <p>3. Evidence of payment of purchase money—Erroneous charge.— Where the evidence is, that, with the exception of an outstanding unsatisfied vendor’s lien, the purchase money on property offered for insurance had been paid, a charge based on the hypothesis that the jury are satisfied “ that the purchase money had not been paid and that there was an outstanding unsatisfied vendor's lien,” was properly refused.</p> <p>4, Warranty of fee simple ownership—Not broken, when.—It seems that a warranty that the land on which the insured building stands is owned 'in fee simple, is not broken if the party is in a condition to enforce specific performance of a bond to convey.</p> <p>5. Correct charge—No error to refuse, when.— It is not error to refuse a charge when one substantially the same is given. See opinion.</p>