author: PLEASANTS, Chief Justice.

text:
    INTERNATIONAL-GREAT NORTHERN R. CO. v. TEXAS & N. O. R. CO. et al.
    No. 9815.
    Court of Civil Appeals of Texas. Galveston.
    March 3, 1933.
    Rehearing Denied April 20, 1933.

      Blanchard & Woodul, of Houston, for appellant.
    Baker, Botts, Andrews & Wharton, John P. Bullington, Jesse A. Raymond and Tom M. Davis, all of Houston, for appellees.
   PLEASANTS, Chief Justice.

, This is a suit by appellant to recover from appellees the sum of approximately $6,000 alleged to be due it by appellees as the reasonable costs of services rendered them by appellant at their request.

Plaintiff’s petition alleges in substance that on October 23, 1901, it, through its predecessors, was operating a railroad in Harris and Brazos counties, Tex., as well as other counties of Texas, and that on said date the Houston & Texas Central Railroad Company was operating a railroad in said counties; that on or about said date the plaintiff’s predecessors, desiring to cross the tracks of the Houston & Texas Central Railroad Company near College Station at grade with its track, entered into a contract with the said Houston & Texas Central Railroad Company, which contract was approved by the Railroad Commission of Texas, and that by the terms of said contract, it became the duty of the plaintiff’s predecessors and its successors in title, the appellant herein, to install, maintain, and operate at its own expense an interlocking plant making safe the crossing of said railroads at or near College Station; that this was done, and that on or about February 28, 1926, the appellant was operating the various interlocking devices and signals from an interlocking tower, there being twenty-one functions involved in said plant at said time; that by reason of the situation then existing, the appellant safely operated said plant by using two tower men on said plant eight hours a day each, which was all the service then required to make said crossing safe; that about said date the Houston & Texas Central Railroad Company, for its own convenience and benefit, extended a side track and a passing track in the vicinity of said interlocking plant, so as to bring said two tracks within close proximity to said interlocking plant, and said Houston & Texas Central Railroad Company, at its own expense, connected up said two relocated tracks with said interlocking tower, requiring six additional functions, and hy reason thereof requested appellant to give continuous service at said interlocking tower, thus requiring the employment of the third tower man, and requested the appellant to maintain and operate said additional functions controlling said relocated tracks. Appellant alleged that the Houston & Texas Central Railroad Company, by reason of such matters, contracted to pay to appellant the reasonable cost of such additional operation and maintenance, or in the alternative that there was an implied obligation to pay for same.

It is alleged that the appellee Texas & New Orleans Railroad Company, by lease agreement, took over the operation of the railroad of the appellee Houston & Texas Central Railroad Company, and assumed and bound itself to pay any and all liabilities incurred hy Houston c& Texas Central Railroad Company theretofore and to operate the line of the Houston & Texas Central Railroad Company; that the reasonable value of the operation and maintenance done for the account of the appellee Houston & Texas Central Railroad Company was $1,177.15; and that subsequent to the operation of the properties by that company, the value of the operation and maintenance done for the account of the appellee Texas & New Orleans Railroad Company was $4,954.66, for all of which appellant prayed judgment, together with interest at 6 per cent, per annum from the date of each monthly bill rendered to the appellees by appellant.

Appellees answered by general demurrer and general denial.

The case was tried before the court without a jury and the court rendered judgment on December 17, 1931, in favor of the appellant and against the appellee Texas & New Orleans Railroad Company for $367.95, with interest, covering cost of maintenance of the additional six functions made necessary by the relocation of said tracks.

Plaintiff, appellant here, requested the court to file findings of fact and conclusions of law, which the court did, finding in effect that appellant was entitled to the cost of maintenance but not to the additional cost of operation arising by reason of the additional functions.

The facts found by the trial court are as follows:

“I. On October 23, 1991, the Houston & Texas Central Railroad Company and the International-Great Northern Railroad Company entered into a contract whereby the International-Great Northern Railroad Company was given the right to cross at grade with its main line track, the track of the Houston & Texas Central Railroad Company at a point south and near College Station; by this contract the International-Great Northern Railroad Company was obligated to install an interlocking device at said crossing and to put same in with all appurtenances and appliances in connection therewith, at its own cost and expense and at its own cost and expense to forever operate and maintain the same in a careful, and prudent manner for the greatest protection possible of both parties to the contract. This the International-Great Northern Railroad Company complied with down to the time of the matters arising during the month of March, 1926. This contract was made subject to the approval of the Railroad Commission of Texas, and was to be given force and effect from and after the approval of said Commission, which was duly given by an order entered by the Railroad Commission on October 24, 1901, the contract being recited in the order.
“II. The International-Great Northern Railroad Company has succeeded to the rights and liabilities of the International-Great Northern Railroad Company and its successors, under the contract of October 23, 1901. The Texas & New Orleans Railroad Company, under a lease contract effective March 1, 1927, succeeded to the rights and obligations of the Houston & Texas Central Railroad Company under the contract above referred to.
“III. That during the early part of March, 1926, the Houston & Texas Central Railroad Company, for its own convenience, rearranged or relocated two certain railroad tracks, one a passing track and one a switching track, neither of which tracks are crossed by the main line track or any other track of the International-Great Northern Railroad Company, and in so rearranging and relocating said tracks, such tracks were brought closer to the interlocking tower or plant and said two tracks and the devices controlling the operation of said two tracks were connected with the interlocking plant being maintained and operated by the International-Great Northern Railroad Company under the aforesaid contract.
“IV. That prior to the relocation or rearrangement of said two tracks by the Houston & Texas Central Railroad Company, there were required in the operation of the interlocking tower and the tracks of the two contracting parties and the safety devices necessary to such operation, what were known or designated in railroad parlance, as twenty-one (21) separate and distinct functions, which said functions were controlled by the operator on duty in the interlocking tower. That due to the relocation and rearrangement of said two tracks by the Houston & Texas Central Railroad Company, and the connection of same with the said interlocking plant or tower, there was required an additional six (6) functions, and therefore, after said rearrangement and relocation and said installation, there were twenty-seven (27) functions involved in operating from said interlocking tower.
“V. That immediately prior to the inclusion of the six (6) additional functions, the operating company, International-Great Northern Railroad Company, with the permission of the Houston & Texas Central Railroad Company, was using only two (2) operators in the tower. Each of said operators worked eight (8) hours and received for such eight (8) hours work the sum of One Hundred Twenty-Eight' and 95/100 Dollars ($128.95) a month. Such operators did not work at the same hours: but operated the tower' a total of sixteen (16) hours out of each twenty-four (24) hours of the day. When the last man went off duty, all tracks and safety devices were manipulated so as to give the Houston & Texas Central Railroad Company through right of way over its main line track crossed by the International-Great Northern Railroad track, in this manner giving the trains of the Houston & Texas Central Railroad Company safe right of way at the crossing during said eight (8) hour period. If trains on the International-Great Northern Railroad Company track were to pass through said crossing during the period when a tow-erman was not on duty, either a towerman had to be called or one of the crew on the train would go to the tower and operate same, and after the said train had crossed the crossing, the signals and devices and tracks would be so lined up as to leave the Houston & Texas Central trains the right of way.
“VI. Due to the fact that the relocation and/or rearrangement of the two (2) additional tracks of the Houston & Texas Central Railroad Company and the manner of installation in connection with said interlocking plant, such two (2) tracks could not be left open as could be the Houston & Texas Central main line track, and by reason of the necessity for switching over said two (2) tracks at all hours, it became necessary to again have continuous service at the interlocking tower, at which time the Houston & Texas Central Railroad Company demanded that the International-Great Northern Railroad Company again give such continuous service as had been previously given, up to a short while before the installation of the new functions when the Houston & Texas Central Railroad Company gave the International-Great Northern Railroad Company permission to suspend continuous service, and in accordance with such demand the International-Great Northern Railroad Company again employed a third man for duty on such tower so as to give continuous service and such condition has existed down to the date of the trial.
“VII. I find that from the date of the original contract relating to the interlocking tower down to some time prior to the changes made in the tracks in March, 1926, the International-Great Northern Railroad Company and/or its predecessors in interest gave continuous service at the interlocking tower and in giving such continuous • service used three (3) men in such tower in eight (8) hour shifts. I find that due to changes in "the schedule of the train service of the International-Great Northern Railroad Company trains of that company rarely passed over its main line during the eight (8) hour shift from 11:00 P. M. to 6:00 A. M. and that between such hours there was n'o train of the International-Great Northern Railroad Company regularly scheduled to pass over its main line and that only occasionally extra trains were run during such hours. I find that because of this change in schedules the International-Great Northern Railroad Company requested permission from the Houston & Texas Central Railroad Company to suspend tower service from 11:00 P. M. to 6:00 A. M. and that the Houston & Texas Central Railroad Company acceded to such request and gave its permission to such change being-made without, however, committing itself as to the future, and that after receiving such permission the International-Great Northern Railroad Company removed the operator who had been working the tower on the shift from 11:00 P. M. to 6:00 A. M. and that during those hours the tower employee of the International-Great Northern Railroad Company, on leaving the tower, would leave the tracks- lined up for first use by the Houston & Texas Central Railroad Company, as stated in paragraph Y hereof, and that when it was necessary to use the crossing during the period from 11:00 P. M. to 6:00 A. M. the tower was operated substantially in the manner set out in the' last portion of paragraph V hereof.
“VIH. I further find that the relocation, installation and/or rearrangement of said tracks by the Houston & Texas Central Railroad Company in 1926, were in nowise for the benefit of the International-Great Northern Railroad Company, but, on the contrary, were for the sole benefit of the Houston & Texas Cefitral Railroad Company and its successors in interest.
“IX. The Houston & Texas Central Railroad Company in constructing or rearranging and relocating said tracks in 1926 did so at its own expense and bore the costs thereof, including that necessarily involved in connecting up such tracks and other appropriate operating devices with the interlocking tower, standing all expense of installation of the required six (6) extra functions.
“X. It is agreed by the parties that during the operation by the Houston & Texas Central Railroad Company that line did the maintenance work necessarily required by the installation of said additional functions but that the International-Great Northern Railroad Company since September, 1927, to the time of the trial, did maintenance work necessarily involved with respect to said six (6) additional functions of the value of the sum of Three Hundred Sixty-Seven and 95/100 Dollars ($367.95).”

At the request of appellant, the court made the further fact finding: “I further find that by reason of the reconstruction and relocation of the two said railroad tracks referred to in Findings of Fact III, on file herein, it was necessary for the plaintiff, International-Great Northern Railroad Company, to employ a third towerman which it did, at a cost of One Hundred Twenty-eight and 95/100 ($128.95) Dollars per 'month, and that said Company has maintained such towerman from the time of installation down to date of trial and has paid the cost thereof.”

The contract under which appellees claim that appellant is obligated to perform the services for the value of which this suit is brought, provides, in section 2 thereof: “Said interlocking devices shall be in all things and in every particular satisfactory to the party of the first part (appellee) both as to the make and the construction thereof, and as to the equipment and operation thereof, and shall be a strictly modern, first-class, up-to-date interlocking device, providing the greatest safety practicable in its construction and in all of its details.”

Section 3 provides, in part, as follows: “The party of the second part will, at its own cost and expense, forever operate and maintain the same (the interlocking devices at the crossing, and each and every part thereof, and all appurtenances and appliances in connection therewith) in a careful and prudent manner for the greatest protection possible of both parties to this contract, in the joint and mutual interest of both parties hereto, and this obligation shall be a continuing obligation upon the party of the second part, its successors and assigns, so long as said crossing or any grade crossing at or near either of said points shall exist.”

The statute in force at the time this contract was made (Acts 1901, c. 89, p. 255) provides:

“Sec. 3. In case any railway company shall hereafter seek to cross at grades with its track or tracks, the track or tracks of another railroad,, the railroad seeking to cross at grade shall be compelled to interlock, or protect such crossings by safety devices to be designated by the Railroad Commission and to pay all costs of appliances together with the expense of putting them in; provided, that this act shall not apply to crossings of side tracks.
“Sec. 4. Whenever interlocking or other safety devices are constructed and maintained in good order to the satisfaction of the Railroad Commission in compliance with Sections 2 and 3 of this act, then and in that case it shall be lawful for the engines and trains of such railroad or railroads to pass over such crossings without stopping.”

All the provisions of the statute above cited are substantially embodied in article 6502, Revised Statutes (1925).

Prior to the execution of this contract a suit had been instituted in the district court of Harris county by the Houston & Texas Central Railroad Company to prevent appellant’s predecessor, who thereafter made the contract with appellees’ predecessor above named, from mating the grade crossing then proposed to be made by it. In this situation the contract in question was executed, submitted to and approved by the Railroad Commission, and has ever since been acted upon by all of the parties at interest.

We agree with the trial judge that appellant “both by the express terms of such contract and by the practical construction of the parties, was required to give continuous service at such interlocking plant by having someone on duty twenty-four hours each day to operate the same when it became necessary to do so and that the International-Great Northern Railroad Company was and is obligated under such contract to maintain three men on duty in said tower at its own cost and expense so long as proper operation requires three men to operate properly said tower continuously for twenty-four hours each day.”

The amount in issue in this case being the cost of the additional operation of the interlocking device, this conclusion determines the disposition of this appeal.

It may be that appellant was not entitled under the contract to recover from ap-pellees the cost of maintenance of the six additional functions installed by the appellee Texas & New Orleans Railroad Company, but as appellees acquiesced in this portion of the judgment, the question is not now before us. Such acquiescence -is certainly no ground for the contention that appellees should also be held responsible for the additional cost of operating the interlocking plant, in the face of the express provisions of the contract before set out.

We think the evidence amply justifies the conclusion that the relocation and extension of appellee Texas & New Orleans Railroad Company’s side tracks was a reasonable exercise of its duty to furnish adequate transportation facilities, and was done in a careful and proper manner. This relocation and extension having brought the connections of these side tracks with appellees’ main line track within the limits of the interlocking plant, appellant was bound, under its contract, to protect its crossing of appellees’ track by a sufficient operation of the interlocking plant.

It cannot be reasonably contended that the contract should be held restricted to the needs and conditions of appellees’ railroad tracks as they existed at the date of the contract, but by its express terms the contract was intended to meet the reasonable changing transportation necessities of either of the parties, and the fact that the relocation of appellees’ side tracks was made for their sole benefit is immaterial. Appellees’ legal rights under their contract cannot be altered or impaired because they alone were benefited by their exercise of such rights. 1 Texas Jurisprudence, page 628; Ellis v. Valentine, 65 Tex. 532; Roberts v. Clark (Tex. Civ. App.) 103 S. W. 417.

What we have said required an affirmance of the judgment, and it has been so ordered.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    TINCH v. FAIN-TOWNSEND CO.
    No. 9852.
    Court of Civil Appeals of Texas. Galveston.
    April 1, 1933.

      King, Wood & Morrow, of Houston, for appellant.
    George T. Lee, of Dallas, for appellee.
   PLEASANTS, Chief Justice.

The following statement of the nature and result of this suit is copied from appellant’s brief:

“The suits forming the basis of this appeal, and which were consolidated for the purpose of trial, were instituted by the Fain-Townsend Company and against J. S. Golson and wife, Mildred R. Golson, and Vivian .O. Tinch, individually and as guardian of the Estate of Lottie Almeda Weeks, the plaintiff seeking to recover the amount of the principal and interest due and owing on six paving assessment certificates, Nos. 386, 387, 388, 716, 717, and 718, Certificates Nos. 386 and 388 being for the sum of $500.00 each, No. 387 being for the sum of $487.50, Nos. 716 and 718 -being for the sum of $650.00 each, and No. 717 being for the sum of $633.75, all issued by the City of West University Place, Texas, to Scott 'Shambaugh, and endorsed by the latter to Fain-To-wnsend Company, and all being secured by a purported assessment lien created by an ordinance of the City of West University Place and covering, collectively, Block 81 in the Second- Addition to West University Place, the plaintiff below seeking to recover of and from the defendants, J. S. Golson and Mildred R. Golson thei amount of principal, interest, and attorney’s fees claimed to be due on said certificates, and to have judgment entered in their favor as against all of the defendants for a foreclosure of the purported assessment lien upon said property.
“The defendant, Vivian O. Tinch, individually and- as guardian of the estate of Lottie Almeda Weeks, in defense of said actions, alleged that the defendant Lottie Almeda Weeks was a minor and that she was guardian of the minor’s estate; that on February 10, 1928, the estate of the minor consisted of $5,200.00 in cash. That on that date and under an order of the probate court she made a loan of $5,000.00 in cash- upon the security afforded by the land and premises upon which the plaintiff sought to foreclose its purported lien; that on such date the minor, acting through her as guardian, purchased from one K. P. Chinn, a promissory vendor’s lien note of thatl date, being for the sum of $5,000.00, executed by J. Slayden Golson and wife, Mildred R. Golson, and being due and payable to K. P. Ohinn or order five years after date, and being secured by a vendor’s lien and deed of trust lien upon the land and premises above mentioned, such liens being transferred and assigned by the said K. P. Chinn to the minor defendant on the 10th day of February, 1929, as security for the payment of the above mentioned note, such liens being in full force and effect and constituting a valid and subsisting lien upon the property mentioned at the time of and long prior to the attempted fixing of the assessment lien sought to be foreclosed by the plaintiff. That at the time of the passing of the ordinances by the City of West University Place attempting to fix upon the land in controversy an assessment lien -for the purpose of securing the payment of the assessment certificates sued on by the plaintiff, the said Lottie Almeda Weeks was, as she still was at the time of the trial, a minor, and held a valid and subsisting first lien and mortgage upon the land involved securing the payment of the $5,000.00 note mentioned, and that because of her estate in said land, consisting of the lien and mortgage thereon held by her, and because of her minority, the liens mentioned were first and superior to the assessment lien which the City of West University Place sought to fix on said property, in that the constitution of the State of Texas specifically provides that no local or special law shall be passed affecting the estates of minors or persons under disability, and in that the ordinance or ordinances of the City of West University Place, a municipal corporation, by virtue of which there was sought to be created and fixed against said land an assessment lien prior and -superior to the liens held by such minor, constituted and were such local or special laws as were condemned by the constitution of the State of Texas, and were, in so far as said minor’s rights were concerned, unconstitutional and void. That on the 29th day of December, 1930, the minor defendant foreclosed her liens on said land, which was then sold under execution, and was bought in by said minor at such sale, a deed covering the property being executed and delivered to her by the .proper officer. That at the time of the foreclosure and sale the amount due and owing the minor defendant on the indebtedness held by her, principal, interest, and attorney’s fees, amounted to $6,909.94. The minor defendant and her guardian prayed for judgment that the plaintiff recover nothing as against them, and that the minor defendant be quieted in her title to the land, and that the purported lien of the plaintiff be declared void; and in the alternative that they have judgment declaring the purported lien of the plaintiff second and inferior to the lien held by the minor defendant securing the payment of the amount loaned by the minor on such property, and that in event the plaintiff was granted a foreclosure of its lien, then that it be decreed that upon a sale of the property there be first paid to the minor defendant the amount of her loan on the property, with interest and attorney’s fees thereon, up until the date of such sale, the balance of the proceeds of such salei to go to the plaintiff. *
“The plaintiff below filed first supplemental petitions in each of the causes consisting of a general demurrer, special exceptions, general denial and special denial that the assessment liens involved in the suit were created in violation of the provisions of the constitution of the State of Texas.”

The foregoing statement is accepted by ap-pellee as sufficiently full and accurate.

The trial in the court below without a jury resulted in a judgment in favor of plaintiff against the defendants Golson and wife for the principal and interest due on the certificates, and an additional sum of $800' as attorney’s fees, and against all of the defendants for foreclosure of the paving assessment liens on the property in controversy, which was ordered to be sold in satisfaction of the judgment.

Appellant assails this judgment on two grounds.

The first assignment complains of the judgment against defendant for $800 attorney’s fees, because there is no evidence showing that the certificates upon which the suit is brought were placed in the hands of an attorney for collection, or that the services of an attorney and the bringing of this suit were necessary in the collection of the amount due on the certificates, and that there is no evidence showing that appellee agreed to pay his attorney for his services in prosecuting the suit, nor any evidence showing what services the attorney had rendered.

There is no merit in this complaint. The record shows that the suits, which were consolidated and tried as one, were brought by the attorney who represented the appellee on the trial in the court below, and by brief in this court. He had in his possession and introduced in evidence on the trial the paving certificates upon which the suits were brought. These certificates provide for the payment “of reasonable attorney’s fees — if incurred” in their collection. The record further shows that default had been made in the payment of the certificates and necessity of the suits to enforce their collection. We do not think on the face of this record it can be reasonably contended that the collection of the certificates did not require that the suits be brought, or that it was not shown that appellee had placed the certificates in the hands of the attorney who represented it on the trial, and agreed to pay him for his services. The amount due upon the certificates, principal and interest, was more than $4,000. Two attorneys, qualified to testify as to the reasonable value of the professional services of appellee’s attorney, fixed the value of such services at a larger amount than that fixed by the trial' court in the judgment.

One of these witnesses testified that a reasonable fed for bringing the suit and representing appellee in the district court was $750, and, if the case should be appealed, a further fee of $250 for taking the case to the Court of Appeals, and, if the ease went to the Supreme Court, an additional fee of $150. The other witness testified that a reasonable fee for bringing these suits for $4,000, in which constitutional questions were| involved would be 20 per cent, of the amount involved, which would amount to $750 or $800. This was all the testimony on this issue. The trial court adjudged that a reasonable fee for bringing the suits and representing the appellee on the trial in the district court was $600, and, if the case was taken to the Court of Appeals and the Supreme Court a further fee of $100 for representing appellee in each of these courts would be reasonable. The judgment protects appellant from the payment of each of the additional fees if the case is not appealed to the Court of Appeals or to the Supreme Court.

We think it well settled that the evidence before set out was amply sufficient to sustain the judgment of the trial court for the amount of attorney’s fees allowed by the judgment.

The information which the judge necessarily obtained in the trial of the case as to the character and reasonable value of the services of appellee’s attorney, together with the judge’s experience as a lawyer and a judge, was properly considered by him in arriving at the amount to- be .allowed the attorney.

It has been expressly held that the provision in the notes that reasonable attorney’s fees should be paid “if incurred” was a sufficient statement of the contingency on which attorney’s fees would become due. Schutze v. Dabney (Tex. Civ. App.) 204 S. W. 342, 344; Bonnell v. Prince, 11 Tex. Civ. App. 399, 32 S. W. 855, 857.

Appellant’s second proposition, under which it is contended- that the lien fixed by paving ordinance upon the property upon which appellant held a vendor’s lien is void, is because the statute and ordinance under which the lien was created was void because prohibited by section 56, art. 3, of the Texas Constitution, which provides: “The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * affecting the estates of minors, or persons under disability.”

We think it clear that the statute (article 1105b, Yernon’s Ann. Civ. St.) under which the ordinance was passed is not a local or special law, since it relates not to any particular town or city, but to all towns and cities of a specified class, and the ordinance under which appellee’s, lien was created was a valid exercise by the city of West University Place of a power granted by such general statute. Anderson v. Brandon (Tex.Sup.) 47 S.W.(2d) 261, 263.

These conclusions require an affirmance of the judgment, and it has been so ordered.

Affirmed.


author: PLY, Chief Justice.

text:
    COOK v. LESLIE et al.
    No. 9035.
    Court of Civil Appeals of Texas. San Antonio.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    Griffin, Kimbrough & Cox, of McAllen, for appellant.
    Carl & Leslie, of Edinburg, and E. A. McDaniel, of McAllen, for appellees.
   PLY, Chief Justice.

This is an action by appellant for the balance on a promissory note of $2,390.38, and the foreclosure of a lien for the purchase money on certain land situated in Hidalgo county. The suit was against a number of defendants, but the note was executed by J. E. Leslie and George H. Kunz. The cause was heard by the court without a jury and judgment rendered for the balance due on the note and a foreclosure on all the land except that theretofore sold by the parties in possession.

Parts of the judgment reciting the facts pertinent to this appeal are herein copied, as follows:

“On the 29th day of May, A. D. 1926, by general warranty deed of that date, plaintiff conveyed to defendants, J. E. Leslie and George H. Kunz, the said George H. Kunz being now deceased * * a certain tract or parcel of land, lying and being situated in Hidalgo County, Texas. * * *
“As a part of the purchase money for said above described premises, the said J. E. Leslie and George H. Kunz, now deceased, did execute and deliver to plaintiff, their certain promissory vendor’s lien note in the principal sum of Five Thousand ($5,000.00) Dollars, bearing interest at the rate of 6% per an-num, interest payable annually, and providing 10"⅞ attorneys fees on any amount then due and owing on principal or interest in the event said note should become in default and not paid at its maturity; said note maturing on or before two years after date; and in said deed the vendor’s lien was especially retained to secure the payment of said note.
“Said deed from said plaintiff to the defendants J. E. Leslie and George H. Kunz, now deceased, contained a provision among other things, that in the event the said J. E. Leslie and George H. Kunz should subdivide said above described premises into lots and •blocks, should they tender to the said plaintiff Fifty Dollars for any lot sold, after same had been subdivided, that he, plaintiff, would release such lot or lots thus sold from the vendor’s lien in said deed retained.
“On November 8, 1926, the said defendant J. E. Leslie sold and conveyed his undivided interest in and to said above described real estate to the defendant P. W. Barron, and as a part of the purchase consideration from the said P. W. Barron to the defendant J. E. Leslie, the said P. W. Barron did assume to pay off and discharge said above described note in the sum of $5,000.00, together with interest and attorneys fees thereon, and to hold the said J. E. Leslie safe and harmless from any liability thereon.
“Thereafter, on November 27, 1928, the said George H. Kunz, now deceased, sold and conveyed his interest in and to the aforesaid described premises, and as a part of the purchase consideration moving to the said George H. Kunz by the said P. W. Barron, the said P. W. Barron assumed any and all balances due and owing on said $5,000.00 note, executed by said defendants J. E. Leslie and George H. Kunz to the plaintiff herein when they acquired said land.
“After said land * * was sold by plaintiff to the defendants J. E. Leslie and George H. Kunz, the same was platted and subdivided into lots and blocks, and as subdivided was called the La Paloma Addition to the city of McAllen, Texas. ⅜ * *
“After the said P. W. Barron, defendant herein, had acquired title to the aforesaid described premises, he sold to the defendants and interveners in this suit, save and except the defendants, J. E. Leslie, P. W. Barron, Marion Kunz and J. B. Close, who have remained herein throughout the trial,” certain described portions thereof.

The facts thus stated are not contested and show the status of the cabe. Under the agreement certain lots were sold and certain sums were paid to the owner of the note, thereby causing a release of such lots from the vendor’s lien and any liability for purchase money to appellant.

The contention upon which this appeal is based is that lots which were sold by Leslie and his grantee, and the money paid to appellant without designation of the lots upon which the money was paid and without obtaining releases thereon at the time, should not be released from the general lien on the whole tract. It is not contended that the list of the purchasers of lots in the subdivided tract were not properly detailed in the judgment, nor that the amounts given as having been paid to appellant were not correct, but that because the number of the lot and the name of the purchaser were not given at the time the proper sum was paid to appellant, that the latter still held a lien on the lots and it was error to refuse to foreclose the vendor’s lien on such lots. Each purchaser of a lot in the subdivision had constructive notice from the deed given by appellant to Leslie and Kunz, which stated that all lots sold by the vendees should be released upon payment of certain sums, from the vendor’s lien. A demand, it is true, seems contemplated, but that is not mandatory or essential to lift the lien from the lot sold tb a buyer, under the agreement, when the $50 was paid. The payment of the money to appellant released the lot purchased by a third party, who had been led by the agreement set out in the deed to purchase the lot. Execution of the release was not essentially necessary to lift the lien, but the essential matter was payment of the $50 a lot. It is not the contention of appellant that any of the lots that were sold were not fully paid for under the terms of the deed, but that the purchasers of lots should be made to suffer because releases had not been formally demanded and formally executed. It would be inequitable and unjust to permit any creditor to take advantage of such bare technicalities to the great damage of purchasers of the lots. The releases were paid for, and, whether demanded or not, equity will consider that was done which conscientious and just dealing demand should have been done. The releases should have been given; equity will regard them as having been given. It was the intent to give such releases, and that intent should control any formal act to be done. Equity has incarnated the Golden Buie so as to compel unwilling men to act toward others as they would ask that others act toward them. It has erected a court of conscience and higher justice, and rendered the iron-bound rules of law kind, human, and considerate of the rights of others. The maxims of equity find a place for expression under the facts in this case. The courts of Texas uniformly enforce those maxims. Tex. Jur. vol. 17, §§ 35, 30, 37.

The judgment is affirmed.


author: PER CURIAM.

text:
    WILSON et ux. v. STATE.
    No. 2876.
    Court of Civil Appeals of Texas. El Paso.
    April 6, 1933.

      L. A. Dale, of Pecos, for appellants.
    ffm. h. Kerr, Dist. Atty., of Pecos, for the State.
   PER CURIAM.

This suit was brought by the district attorney for the 109th' judicial district seeking to enjoin appellants from maintaining a nuisance in a certain frame building located on lota 15, 16, and 17, block 16, in the town of Monahans, Tex., commonly called “Blackies Place,” as the same is defined in article 4664, Revised Statutes.

The following affidavit was affixed to the petition: “Before me, the undersigned authority, on this day personally appeared William D. Kerr, District Attorney, 109th Judicial District of Texas, who, after being by me duly sworn, deposes and says that within and foregoing facts and conditions are true and that the statements in this petition are true, according to his information and belief, based upon information reported to .him by credible persons.”

On the same day the petition was presented, the trial court, without any notice to or appearance by appellants, entered- the following order: “The foregoing petition examined by me this 16th day of March, A. D. 1933, and said temporary injunction as prayed for granted and! that the clerk of this court will issue such writ enjoining the defendants, E. S. Wilson and wife, Mrs. E. S. Wilson, from using premises described in petition as a nuisance arid abating the same and enjoining said place from being used as a place where intoxicating liguors are kept, possessed, sold, manufactured, bartered and given away and restraining the illegal handling of intoxicating liguors as set out in the petition. And this cause is set for final'hearing at 10 o’clock A. M., May 15th, 1933, at the court house in Barstow, Ward County, Texas, at which time the defendants will appear and answer this cause.”

Prom the above order appellants have prosecuted an appeal.

Opinion.

Appellants attack the order on two grounds, viz.: (1) That the verification of the petition, being on information and belief, is not a sufficient compliance with article 4647, R. S., and will not warrant the granting of a temporary injunction; and (2) that no bond was given by appellee as required by article 4648, R. S.

Appellee, on the other hand, contends that under the provisions of article 4666, Revised Statutes, where a suit is filed by a district attorney, an affidavit by him that he has reliable information as to the existence. of the facts alleged is sufficient.

The statute referred to reads, in part: “Whenever the Attorney General, or the district or county attorney has reliable information that such a nuisance exists, either of them shall file suit in the name of this State in the county where the nuisance is alleged to exist against whoever maintains such nuisance to abate and: enjoin the same.”

It appears to be well settled in this state that the verification of a petition for an injunction made upon information and belief will not support the issuance of a temporary injunction. Zanes v. Mercantile Bank & Trust Co. of Texas (Tex. Civ. App.) 49 S.W.(2d) 922 (writ refused); State Banking Board v. Smyth (Tex. Civ. App.) 2 S.W.(2d) 536; Robertson v. Economy Plumbing Co. (Tex. Civ. App.) 269 S. W. 481; West Texas Abstract & Guaranty Co. v. Stolte (Tex. Civ. App.) 256 S. W. 632; Butler v. Remington (Tex. Civ. App.) 230 S. W. 224.

This would especially be applicable in a case where the injunction was issued ex parte.

Under the above-quoted provision, we think it clear that the court would be authorized to entertain the petition of a district attorney where the record revealed that he had reliable information as to the facts alleged and that the court could, upon such a petition, and upon final hearing, if the facts as alleged were shown to exist, abate the nuisance and enjoin the acts complained of; but we cannot agree that the court would have the power to grant a temporary injunction ex parte upon such a verification.

It has long been held that courts should exercise their power to grant injunctions with great caution and only where the reason and necessity therefor are clearly established. 32 O. J. p. 33. And in the present case, under the verification appearing to the petition, the court was in no position to pass upon the necessity for the issuance of the writ. The only fact before him upon which he could depend as to the truth of the allegations was that some person, whom the district attorney had thought to be credible, had informed him that the facts existed.

To give to the statute the construction contended for by appellee would, in effect, he to say that a court could grant a temporary injunction upon information which satisfied the district attorney and that it would not he necessary for the court itself to be ap: prised of any facts.

This we cannot believe the Legislature intended.

In view of the above holding it will be unnecessary to discuss the remaining question relative to the giving of the bond.

Being of the opinion that the court erred in granting the temporary injunction upon the affidavit above quoted, the temporary injunction will he dissolved.


author: DUNKLIN, Justice.

text:
    HOME INS. CO. v. LAKE DALLAS GIN CO. et al.

    No. 12752.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 21, 1933.
    Rehearing Denied Feb. 25, 1933.
    Thompson, Knight, Baker & Harris, Will C. Thompson, and Sol Goodell, all of Dallas, for appellant.
    George M. Hopkins, of Denton, for appel-lees.

      Writ of error granted.

   DUNKLIN, Justice.

By this appeal the Home Insurance Company of New York complains of a judgment rendered against it in favor of the Lake Dallas Gin Company and the Denton County National Bank upon a fire insurance policy issued by it.

The property covered by the insurance consisted of certain buildings located in Den-ton county, together with some of the equipments installed therein and used in the gin-lling business of tbe Lake Dallas Gin Company, tbe owner, to whom tbe policy was issued! and was made payable and also to tbe Denton County National Bank, wbo was a lienholder, as its interest might appear. Tbe policy was issued through Roy F. Oakley, the agent of defendant, who resided and did business in the town of Lewisville, Tex. It was dated August 7, 1930, and insured the property for the terms of one year from and. after that date, and the aggregate of insurance on all the different items covered was $3,000; it was signed by Milfred Kurth, president, and countersigned by D. D. Mc-Larry, general agent of the company at Dallas, Tex., and it stipulated that the company should not be liable for an amount greater than three-fourths of the actual cash value of each item of property insured at the time immediately preceding such loss, the damage not to exceed the amount of insurance on eacR item.

The principal questions presented on this appeal involve the effect to be given certain provisions of the policy relating to forfeiture of the insurance alleged by the defendant, and waiver and estoppel as to those defenses pleaded by the plaintiffs; and following are provisions of the policy together with the adjuster’s agreement as to the loss with waiver agreement attached thereto, all of which are involved in those issues:

“It is understood and agreed to be a condition of this insurance that in the event of loss or damage by fire to the property insured under this policy, this company shall not be liable for an amount greater than three-fourths of the actual cash value of each item of property insured by this policy (not exceeding the amount insured on each such item) at the time immediately preceding such loss or damage; and in the event of additional insurance — -if any is permitted hereon — then this Company shall be liable for its proportion only of three-fourths of such cash value; of each item insured at the time of the fire, not exceeding the amount insured on each such item. * * *
“This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on back hereof, which are hereby specially referred to and made a part of this policy, together with such other provisions, agreements, or conditions as may be indorsed hereon, or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such Waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured uhless so written or attached.”

• Indorsed on the back of the policy are the following;

“In case there be a total loss by fire of any real property insured by this policy, as to such real property so totally destroyed, if a liability shall exist hereunder for such loss, it shall be held and considered, subject to the terms of this policy legally applicable, to be a liquidated demand under article 4929, Revised Civil Statutes of Texas, against this company for the full amount hereof covering such real estate. In all other cases this company shall not be liable beyond the actual cash value, of the property at the time of the loss, with proper deductions for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality. In so far as any' of the property described herein is manufactured property, owned by the manufacturer, this company shall not, as to such property, be liable beyond what it would, at the time of the fire, cost the manufacturer to replace said lost property by manufacture, with expense of delivery to the place of the loss. Said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy. It shall be optional, however, with this company, to take all, or any part, of the articles at such ascertained or appraised value, and also to repair, rebuild, or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required of its intention so to do; but there can be no abandonment to this company of the property described.
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now: has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. * * *
“If fire occur, the insured shall protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within ninety-one days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all in-cumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of fire; and shall furnish, if required, verified plans and specifications of any building, fixtures or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.
“The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath by any person named by this company, and subscribe the same; and, as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.
“This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.”

Adjuster’s agreement to value:

“It is hereby mutually stipulated and agreed, by and between the Home Insurance Company of New York and Lake Dallas Gin Company, Inc., that the total amount of loss and damage by fire on the twenty-first day of October, 1930, to the property .described in Policy No. 9185 of the said Company is fixed, adjusted and agreed upon at the sum of Thirty-nine hundred dollars as follows:
“And it is hereby further agreed and understood that, in accordance with stipulation heretofore entered into between the Home Insurance Company and Lake Dallas Gin Company, Inc., on the 3rd day of November, 1930, the sum named above thirty-nine hundred and no/100 Dollars, is binding and conclusive upon the said parties as to the amount and extent of the loss only, and does not in any respect waive any of the conditions of the policy.
“Dated at Dallas, Texas this 3rd day of November, 1930
“The Home Ins. Co. of New York
“By - Doyle, Staff Adjuster
“Lake Dallas Gin Co., Inc.
“By Norman Bayless, President.
“Witness: S. L. Cummings
“G. O. Stewart.”

Nonwaiver agreement:

“It is hereby mutually stipulated and agreed, by and between Lake Dallas Gin Company, Inc., and the Home Insurance Company of New York that any action taken by any representative of either party to this agreement shall not be construed as a waiver of any of the rights to the said Lake Dallas Gin Company or of the said Home Ins. Co., which do now, or may hereafter exist under a policy of insurance issued by the said Home Insurance Company to the Lake Dallas Gin Company, Inc., numbered 9185.
“The intent of this agreement is to reserve all the legal rights of the parties to this agreement and to proceed without delay with an investigation to ascertain the amount of the loss or damage by fire on the 21st day of October, 1930, to the property described in the policy herein referred to, and it is agreed that the acts of said Home Insurance Co. or their representative in endeavoring to ascertain the amount of such loss by appraisement or otherwise shall not be considered a waiver of any of the conditions of the policy referred .to herein, nor as affirming or denying any liability under said policy by reason of the fire above mentioned, but the said acts shall be considered as for the benefit of all concerned, without prejudice to the rights of any of the parties to this agreement.
“Dated at Dallas, Texas, this 3rd day of November, 1930.
“Lake Dallas Gin Co., Inc.
“By Norman Bayless
“The Home Insurance Co.
“By -Doyle, Staff Adjuster.
“S. L. Cummings
“G. O. Stewart.”

The record shows that plaintiffs procured additional insurance on the same property from the iSupexior Eire Insurance Company in the sum of $1,800, extending one year from date, October 17, 1930, and therefore was in effect at the time of the fire.

There was a jury trial, and following are special issues submitted, with findings of the jury thereon:

“1. Upon what date did the fire which damaged the plaintiffs’ property occur? Answer: October 21, 1930.
“2. What was the total amount of loss and damage occasioned by said fire? Answer: $7,000.00.
“3. Do you find from a preponderance of the evidence that the plaintiff suffered a total loss of the property involved in the fire? Answer: Yes.
“4. Do yo,u find from a preponderance of the evidence that the defendant’s conduct in investigating the loss and its dealings with the plaintiffs after the fire was calculated to lead the plaintiffs to believe that no further proof of loss was required .by the company? Answer: Yes.
“5. Do you find from a preponderance of the evidence that the defendant’s conduct in investigating the loss and its dealings with the plaintiffs after the fire led the plaintiffs to believe that no further proof of loss was required by the defendant? Answer: Yes.
“6. When the application for additional insurance was presented to Roy F. Oakley, did the plaintiffs instruct him with what company the insurance should be placed? Answer: No.
“7. When the application for additional insurance was presented to Roy F. Oakley did the plaintiffs know in what company the insurance would be placed? Answer: No.
“8. When did the defendant deny liability and refuse payment of plaintiffs’ claim? Answer: August 10, 1931.
“9. Was Roy F. Oakley a General Agent of defendant Company at the time the policy sued upon was issued? Answer: General Agent.
“10. If you have answered that the said Oakley was a General Agent of the defendant at the time said policy was issued, did he continue in the capacity of a General Agent of the defendant up to and including the time of the fire? Answer: Yes.
“11. Did the defendant take from Norman Bayless proofs which in substance constitute a proof of loss, within 91 days from the date of the fire? Answer: Yes.
“12. Did the defendant accept the service of Roy F. Oakley ⅛ such-a way as to hold the said Oakley out so that the plaintiffs or any reasonably prudent person in the plaintiffs’ position would be justified in believing that the said Oakley was a General Agent of the defendant Company? Answer: Yes.
“13. When did the defendant’s agent Doyle first learn that additional insurance had been obtained on the property in controversy? Answer: On or about Oct. 25, 1930.
“14. After the said Doyle learned that additional insurance had been obtained upon said property did the defendant make any investigation of the loss? Answer: Yes.
“15. After the said Doyle learned that additional insurance had been obtained upon said property did he obtain from Norman Bayless a written sworn statement as to the cause and amount of loss occasioned by the fire? Answer: Yes.
“16. What amount in dollars represents the loss suffered by the fire to the gin building described in the policy sued on? Answer: $1,500.00.
“17. What amount in dollars represents the loss suffered by the fire to the gin machinery described in the policy sued on? Answer: $3,000.00.
“18. What amount in dollars represents the loss suffered by the fire to the engine and boiler'described in the policy sued on? Answer: $1,500.00.
“19. What amount in dollars represents the loss and damage suffered by the fire to the seed house described in the policy sued on? Answer: $300.00.
“20. What amount in dollars represents the loss and damage suffered by the fire to the cotton house described in the policy sued on? Answer: $700.00.”

There were supplemental findings of fact by the trial court, which, together with the decree itself, are recited in the judgment as follows:

“The court after having heard said special verdict and findings find that the same are in proper form and such issues having been examined and the court further finds from uncontroverted evidence that on the 27th day of August, 1930, the defendant through its agent Roy F. Oakley, Lewisville, Texas, issued and delivered its certain policy of insurance No. 9185 by the terms of which it insured the Lake Dallas Gin Company from Noon August 27th, 1930, to August 27th, 1931, at noon against all direct loss or damage by fire to an amount not to exceed $3000.00 on the property therein mentioned which constituted the Lake Dallas Gin, said policy being made to the Lake Dallas Gin Company and payable to the Denton County National Bank under loss payable clause that on or about the 15th day of October, 1930, J. W. Degan, President of the Denton County National Bank suggested to Norman Bayless, President of Lake Dallas Gin Company that he should have more insurance on the gin and thereafter Boy F. Oakley took the application from the Lake Dallas Gin Company for other insurance and on the 17th day of October, 1930, the Superior Fire Insurance Company issued its policy of Insurance No. 762, whereby it insured the same property covered by the policy issued by the defendant for one year in an amount not to exceed $1,800.00, and said policy reached its agent, Roy F. Oakley on the morning of October 22, 1930. That the said Boy F. Oakley was the same person who obtained the application from the Lake Dallas Gin Company for the $3000.00 policy sued on; that defendant’s agent Roy F. Oakley advised defendant’s staff adjuster Doyle that the property covered by the policy of insurance had been destroyed by fire on the 24th or 25th of October, 1930, and at such time advised the said Doyle of the issuance of the additional policy of insurance by the Superior Fire Insurance Company.
“It is the opinion of the court from said findings of the jury and the undisputed evidence in this case that the plaintiffs are entitled to recover the full amount sued for, towit, the sum of $3000.00, with interest thereon at the rate of 6% per annum from August 10, 1931; and it further appearing to the court that the Lake Dallas Gin Company is indebted to the Denton County National Bank in the sum of $4,000.00 with 8% interest from February 27th, 1930, and 10% additional thereon as attorney’s fees, aggregating the sum of $5100.00, and there was only $4800.00 insurance on said property and that as between the plaintiffs the Denton County National Bank is entitled to the entire amount.
“It is therefore ordered, adjudged and decreed by the court that the plaintiffs Lake Dallas Gin Company, a corporation, and the Denton County National Bank, a corporation of Denton, Texas, do have and recover of .and from the defendant Home Insurance Company of New York, a corporation, the said sum of Three Thousand Sixty-four & No/ 100 Dollars with interest thereon at the rate of 6% per annum from this date and all costs in this behalf expended for which plaintiffs may have their execution and that as between the plaintiffs the recovery herein shall be entirely in favor of the plaintiff Denton County National Bank and the plaintiff Lake Dallas Gin Company shall take nothing herein.”

The policy for additional insurance was procured through Roy F. Oakley, who was local agent for that company at that time as well as for defendant, and there was no proof. that defendant ever consented to such additional insurance or knew of it prior to the fire, unless it can be said that Oakley’s knowledge thereof was chargeable to the defendant by virtue of his agency in handling its insurance. And whether or not there was proof, prima facie, that it was one of Oakley’s duties under his employment by the defendant to report to it the issuance of such additional insurance is to be determined by the common-law rules of evidence; the provisions of article 5056, Rev. Civ. Statutes, prescribing who shall be deemed an agent of an insurance company in the issuance of policies, having no application, as settled by the decision in Hartford Fire Ins. Co. v. Walker, 94 Tex. 473, 61 S. W. 711.

According to Oakley’s testimony, he took the application for the additional insurance, and that policy was not received by him for delivery to the insured until after he heard of the fire. He further testified that he never issued policies on gins, and that policies on gins were issued by defendant out of its Dallas office and upon written applications therefor. He further testified that it was his duty to report to defendant when a fire occurred on property covered by one of its policies, and he did make such a report of the fire in controversy here, but there was no direct testimony from any source that it was one of the duties of his employment, by defendant, to report the additional insurance; or that defendant ever received notice of such insurance before the fire; while, according to the evidence offered by the defendant, his agency with reference to insurance terminated with the delivery of a policy to the insured after its issuance by officers in charge of its Dallas office. It is our conclusion that the evidence introduced was insufficient as a conclusion of law to sustain plaintiffs’ contention that defendant through Roy F. Oakley as its local agent was chargeable with knowledge of the additional insurance before the fire occurred; and hence the plea of waiver based on the contention to the contrary is overruled. East Texas Fire Ins. Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Southern Mutual Fire Ins. Co. v. Mazoch Bros. (Tex. Civ. App.) 291 S. W. 257; 26 C. J. p. 298, § 369; Queen Ins. Co. v. May (Tex. Civ. App.) 35 S. W. 829; 8 Cooley’s Briefs on Insurance (Supplement) p. 4083 (bottom page 5411).

The record shows that the only proof of loss furnished by plaintiffs to the defendant was what purports to be a proof of loss in terms required by the policy, signed and verified by Norman Bayless for the Dallas Gin Company and by R. M. Barnes, cashier of the plaintiff Denton County National Bank. The date of that instrument was June 26, 1.931. A letter written by Geo. M. Hopkins as attorney for plaintiff gin company, addressed to D. D. McLarry, general agent of defendant at Dallas, Tex., dated May 23, 1931, requested payment of $3,000 to cover loss by the fire with the statement that the writer did not know whether proof of loss had been furnished, but, if not, requesting blanks to be used for making such proof. In reply to that letter, defendant’s attorneys wrote Hopkins, saying that, after investigating the facts, they had found that defendant was not liable on the policy, and had so advised the defendant. The date of that letter was August 10, 1931. That evidence was insufficient to support the contention made that plaintiffs furnished to the defendant the proof of loss according to the terms and within the time' specified in the policy.

In New Orleans Ins. Ass’n v. Griffin, 66 Tex. 232, 18 S. W. 505, 506, it was held that the provision of forfeiture of fire insurance policies, if additional insurance is taken out without the consent of the insurer, was valid and binding, but that the insurance company may be held to a waiver of that right under a proper showing. It was further held that the waiver was not established merely by testimony that the insured informed the agent of his intention to take out additional insurance. In discussing what was necessary to show waiver or estoppel, the court said: “What occurs must be sufficient to make it unfair for the company to insist upon the defense.”

In Fitzmaurice v. Mutual Life Ins. Co., 84 Tex. 61, 19 S. W. 301, it was held that the statement or acts relied upon to constitute a waiver of a provision in the contract of insurance, inserted for the benefit of the insurance company, must be made by a general agent or one acting within the scope of his authority.

In East Texas Fire Ins. Co. v. Blum, 76 Tex. 653, 13 S. W. 572, it was held that an agent with authority to procure a contract has no power to discharge it by reason of his original authority..

The following is quoted from the syllabus of American Central Ins. Co. v. Nunn, 98 Tex. 191, 82 S. W. 497, 68 L. R. A. 83 “An insurance company did not waive its defense under the ‘iron safe clause,’ by reason of the failure of insured to keep and produce books, by requiring him to submit to an exainination concerning the loss, where the policy provided that he should do so when required and that the insurer should not be held to have waived any condition of the policy thereby.”

In Providence-Washington Ins. Co. v. Levy & Rosen (Tex. Com. App.) 222 S. W. 216, the court sustained the validity of a provision against additional insurance, but remanded the case for trial of the issue of waiver of that provision upon allegations that after the fire, the insurance company, with full knowledge of the amount of insurance carried on the property, and with knowledge of all the facts, recognized the validity of the policy sued on.

It is also the rule that an insurance policy is a contract to be liberally construed in favor of the insured. Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S. W. 1060; Hulen v. Am. Cent. Ins. Co. (Tex. Com. App.) 45 S.W.(2d) 570.

The right to claim a forfeiture is for the benefit of the insurer, which may be waived by it, or it will be estopped to assert it by a proper showing. Equitable Life Assur. Soc. v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625.

In Home Ins. Co. v. Puckett (Tex. Com. App.) 27 S.W.(2d) 111, it was held that knowledge is an essential element of waiver, and there can be no waiver based on facts not known to the insurance company.

We quote the following from the syllabus in Concordia Ins. Co. v. School District No. 98, 282 U. S. 545, 51 S. Ct. 275, 75 L. Ed. 528:

“The requirement of a fire insurance policy that verified proofs of loss be furnished within sixty days after the loss has occurred is waived, and the insurer estopped against setting it up, where the insurer, through adjusters, investigated the loss and proposed a settlement which was not accepted because of a difference in opinion as to the value of the building destroyed, and no objection was made at that time that proofs of loss had not been furnished, or request made that they be furnished.
“A provision of a fire insurance policy that no officer, agent, or other representative shall have power to waive any provision or condition of the policy except" such as by the terms of the policy may be the subject of agreement indorsed thereon or added thereto, and that no waiver shall be effective unless written upon or attached to the policy, has reference to those provisions and conditions which constitute part of the contract of insurance, and does not apply to a waiver, after the loss occurs, of stipulations in respect of things to be done subsequent to the loss as prerequisites to adjustment and payment, such as the furnishing of, verified proofs of loss within a stated time.”

Omitting an extended review of the decisions of this state, we believe it sufficient to say that the distinctions so made in the case last cited between stipulations which enter into and become essential elements of a contract of insurance which cannot be varied by parol testimony, and those relating to what may be done after the loss occurs which are not subject to the parol evidence rule, is impliedly recognized. And in this connection it is to be noted that the adjuster’s agreement as to value and the nonwaiver agreement, both of which were signed by the insurer and the assured, relate only to the matter of determining the amount of the loss resulting • from the fire, and therefore constituted no part of the contract of insur-anee proper. The stipulation in the policy, to the effect that no officer, agent, or representative of the company should have power to waive any provisions or conditions of the policy unless such waiver shall be in writing and attached to the policy, was not such an agreement as could not he waived by a subsequent agreement or acts implying such a waiver. Morrison v. Insurance Co. of North America, 69 Tex. 353, 6 S. W. 605, 5 Am. St. Rep. 63; Occidental Fire Ins. Co. v. Fort Worth Grain & Elevator Co. (Tex. Civ. App.) 204 S. W. 953, and other decisions therein cited. Especially is this true in view of the quoted stipulations in the policy providing that the ascertainment of the amount of the loss shall be made by the joint efforts of the insurer and the insured.

The labor and expense incurred by the plaintiff in collaborating with the adjuster to ascertain the amount of the loss could not furnish a proper basis for an estoppel in pais, since he was under contract so to do. Nor could the insurance company invoke the nonwaiver agreement as a valid and binding contract precluding plaintiffs’ claim of waiver, since it was without consideration to support it, in view of the obligation of the insurance company to make the investigation to determine the amount of the loss.

“Where a legal obligation exists, a cumulative promise to perform it, unless upon a new consideration, is a nullity.” 6E. C. L § 73, p. 664.

The determination by the insured and the adjuster of the amount of the loss resulting from the fire was binding upon both by reason of the agreement therefor; but the stipulations in the nonwaiver agreement to the effect that such undertaking to determine the loss should not be held a waiver of its right to claim a forfeiture of the policy in the event the assured should take out additional insurance was not binding on the plaintiffs as a contract, for lack of sufficient consideration to support it, and plaintiffs especially pleaded such lack of consideration.

The question to be determined is whether or not the act of the company in undertaking, through B. E. Doyle, its regularly employed adjuster, to determine the amount of the loss, after information had been furnished to the defendant through its general office in Dallas and also at its home office in New York, as testified to by Boy F. Oakley, that the fire had occurred, and also that additional insurance on the same property had thereitofotre been taken out — as found by the jury — was a waiver of the right to claim a forfeiture of the policy on either of those grounds. In the first place, we believe it tó be clear that, since the amount of the loss was determined by the adjuster and by the insured well within the 91-day period, the defendant would be in no position to claim a forfeiture for failure of plaintiff to furnish written proof of the loss within the 91-day period, in accordance with the strict terms of the policy, the only purpose of which would be to afford an opportunity to investigate the results of the fire; notwithstanding the fact that the finding of the jury that such proof was furnished was without sufficient support in the evidence. It is our conclusion that under the circumstances just stated the acts of the defendant through its regularly employed adjuster Doyle in investigating and determining the amount of the loss was a waiver of the defendant’s right to claim a forfeiture, either for failure to furnish such proof or on account of additional insurance. And in this connection it is to be noted further that, although the adjuster’s agreement as to loss did not include inventory of the property insured with the cost of each article, the interest of the insured in the property, the incumbrances thereon, a statement of other insurance covering the property, and other details which were required by the policy for proof of loss to be 'made by the insured, we believe that the omission of such details was waived by the adjuster, within the scope of his authority as representative of the company. Cooley’s Briefs on Insurance (2d Ed.) vol. 5, p. 3987.

In the leading case of Equitable Assur. Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625, 628, it was held that a provision for forfeiture of a policy being for the benefit of the insurer may be waived by it, and that no act of the insured is necessary to make such waiver effectual, as in case of estoppel; and that such a waiver will result, in the absence of any agreement to that effect, from negotiations or transactions with the insured, after knowledge of the forfeiture, by which the insurer recognizes the validity of the policy or does acts based thereon; and further that it is not necessary to such waiver that it rest on a new agreement or be supported by a new consideration; or that the party charged therewith intended the waiver. In holding that the insurance company waived the right to claim a forfeiture against Ellis, the holder of a policy for nonpayment of premiums within the time specified in the policy, the court quoted with approval the following from Queen Ins. Co. v. Young, 86 Ala. 424, 430, 5 So. 116, 11 Am. St. Rep. 51: “Conditions in a policy of insurance, limiting or avoiding liability, are strictly construed against the insurer, and liberally in favor of the assured. Though a waiver may be in the nature of an estoppel, and maintained on similar principles, they are not convertible terms. The courts, not favoring forfeitures, are usually inclined to take hold of any circumstances which indicate an election to waive a forfeiture. A waiver may be created by acts, conduct, or declarations insufficient to create a technical estoppel. If the company, after knowledge of the breach, enters .into negotiations or transactions with the assured, which recognize and treat the policy as still in force, or induces the assured to incur trouble or expense, it will be regarded as having waived the right to claim the forfeiture.” See, also, Fidelity Lloyds of America v. Geddie, 116 Tex. 656, 296 S. W. 500; Occidental Fire Ins. Co. v. Fort Worth Grain & Elevator Co. (Tex. Civ. App.) 294 S. W. 953 (writ refused) cited above; 8 Cooley’s Briefs on Insurance (2d Ed.) p. 4829; Id., p. 4448, and p. 4456.

And it is to be noted further that the jury found that the defendant did not deny liability and refuse payment of plaintiff’s' claim until August 10, 1931, which was long after the action by the adjuster. We quote the following from Cooley’s Briefs on Insurance (2d Ed.) vol. 5, p. 4448: “It is a general rule that where the company with knowledge of a breach of a condition or warranty, requires the insured after a loss to furnish proofs, or to furnish additional proofs, it will be held to have waived its right to insist on the defense arising out of such breach. The theory is that the proofs are of no benefit or use unless there is an intention to pay the loss notwithstanding the breach, and therefore a demand for them is equivalent to a declaration of such intention, which the company is not at, liberty to withdraw after the insured has gone to the trouble and expense of complying with the request.”

Following that text many decisions from different states are cited and discussed; with this observation on page 4452: “It is not easy to reconcile all the cases dealing with the effeci of a denial of liability or of waiver by the company at the time of the demand for proofs. The authorities, however, support the proposition that where insured, at the request or demand of the company, is put to trouble or expense in the production of proofs of loss, a waiver of a breach of warranty or condition known to the company will arise, though the demand or request is accompanied by a general statement that no waiver of, any right of the company is intended.”

And the decisions which are noted in subsequent pages of the text show conflicting holdings. In many of them waiver and es-toppel are used in the same sense, the term “estoppel’.’ being sometimes applied when, strictly speaking, the facts amount to a waiver only; and, properly interpreted, the term “estoppel,” used in that connection, if given significance at all, would mean estoppel by waiver. Some of the apparent conflicts in decisions cited in the text vanish when the distinction is observed between a stipulation in the policy of lack of authority in the agent to waive any warranty constituting a part of the contract of insurance proper, and a breach of which would invalidate the policy, and a stipulation of lack of authority to waive conditions arising after the fire. And in 5 Cooley’s Briefs on Insurance (2d Ed.) p. 3987, the following is said: “Though it was asserted in the early case of Phoenix Ins. Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am. Dec. 521, that an adjuster for an insurance company did not have power to waive a forfeiture, the rule supported by the weight of recent authority is that an adjuster authorized to adjust a loss has power to waive forfeitures.” See, also, 8 Cooley’s Briefs on Insurance (2d Ed.) pp. 4448 and 4456, subd. A-3; National Standard Fire Ins. Co. v. Hubbard (Tex. Civ. App.) 31 S.W.(2d) 859.

In connection with special issue No. 3 inquiring whether or not plaintiffs suffered a total loss of the property involved, and to which the jury answered “Xes,” the court gave this instruction: “In considering question No. 3 you are instructed that a policy of insurance applies to the property insured in its then character and when such property has been damaged to such an extent as to lose its identity and its specific character it constitutes a total loss. It is not necessary that all material out of which it is constructed be destroyed or rendered valueless. There can be no total loss so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the structure to the condition in which it was before the injury. Whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question before the fire, would, in proceeding to restore the structure to its original condition, utilize such remnant as such basis.”

Defendant objected to that definition on the ground that whether the building was so damaged as to lose its identity was not a correct test,' and that in that respect the instruction was misleading and erroneous, even though the remainder of the instruction presented a proper test. Under the decisions of Royal Ins. Co. v. McIntyre, 90 Tex. 170, 37 S. W. 1068, 35 L. R. A. 672, 59 Am. St. Rep. 797, and Fire Ass’n v. Strayhorn (Tex. Com. App.) 211 S. W. 447, we believe that, the objection so urged to the instruction is well taken; but that error was harmless, in view of the fact that the plaintiff reached a definite agreement with the adjuster as to the amount of the loss, which, agreement, as said before, was valid and binding on both parties. The judgment rendered was for the sum of $3,000, the face value of the policy. According to the terms of the policy, plaintiffs’ recovery was limited to three-fourths of the loss on all .personal property damaged, and three-fourths of the damage to buildings not totally destroyed; while the amount for which the houses were insured was a liquidated demand if they were wholly destroyed. Three-fourths of $3,900, the amount agreed on in the adjuster’s agreement as the total loss, was $2,925, and under the express provisions of the policy that loss was to be apportioned between the policy sued on, which was for $3,000, and the policy for additional insurance, which was for $1,800. So apportioned, plaintiffs’ recovery would be limited to $1,828.13, and we conclude that it should toe so apportioned without regard to the findings of the jury of the values of the different items of property, since the adjuster’s agreement was of the loss as a whole without any segregation of the different items; and since it furnishes no sufficient basis for an apportionment of the loss so as to allow the sum for which any of the houses were insured as a liquidated demand, leaving the three-fourths value provision applicable only to the remainder of the property insured. In this connection it is to be noted that the property insured was all itemized and the amount of insurance of each item set out, with a further provision that the insurance on each item should be considered separately from the rest.

Hence we conclude that the judgment was excessive to the extent of the difference between $1,828.13 and $3,000. By reason of that error the judgment of the trial court will be reversed and the cause remanded, unless ap-pellees shall file a remittitur of that excess within 15 days from the date of this decision. If the remittitur is so filed, then the judgment will be affirmed for the balance indicated.

On Motion for Rehearing.

In a counter proposition in briefs of appellees, Lake Dallas Gin Company and the Denton County National Bank, it is insisted that the insurer had waived its defense, based on the procurement of additional insurance, by reason of the fact that, after learning of such additional insurance, the insurance company had its adjuster to investigate the fire and to take a statement from the insured as to the cause of the loss and induce the insured to agree to the amount of loss shown in the nonwaiver agreement. And there was a special plea by appellees presenting that contention.

Having invoked such action on the part of the insurer as a waiver of the defense stated, appellee Denton County National Bank is in no position to avoid the agreed valuations of losses sustained as a result of the fire as shown in the adjuster’s agreement.

Furthermore, the Supreme Court of Ohio in Erie Brewing Co. v. Ohio Farmers’ Insurance Co., 81 Ohio St. 1, 89 N. E. 1065, 25 L. R. A. (N. S.) 740, 135 Am. St. Rep. 735, 18 Ann. Cas. 265, that a mortgage clause attached to a fire insurance policy at the time it is executed providing for payment to the mortgagee as his interest may appear is not-an assignment of the policy-to the mortgagee, nor does it bind the mortgagee to pay any premiums or do any act necessary to keep the policy in force; and, in the absence of fraud or collusion, he is bound by the award of the appraisers provided for in the policy as to the amount of the loss, although he was not a party to, or had any notice of, the appraisement and award. Many decisions are cited in support of that holding, including Chandos v. American Fire Ins. Co., 84 Wis. 184, 54 N. W. 390, 19 L. R. A. 321. Other decisions are noted and discussed, which reach a contrary conclusion, but it is pointed out that in some instances,- at least, they are distinguishable by reason of provisions in some of the policies indicating that the mortgagee would have a right to toe heard when such adjustment of values is reached. In this case the mortgage clause specifically provides that it is subject to the terms of the policy, and one of the provisions of the policy is that, in the event of loss of any manufactured article, the loss shall be ascertained “by the insured and this company, or if they differ, then by appraisers as hereinafter provided,” and there is no provision in the policy which would indicate that the insured would not have the right to adjust the amount of the loss without consent of the mortgage holder. And, since appellee has failed to file the re-mittitur suggested in our original opinion, the judgment of the trial court is reversed in its entirety, and the cause is remanded for errors pointed out in our original opinion.

Appellees’ motion for rehearing is overruled.

We have also duly considered appellant’s motion for rehearing, and the same is also overruled.