# Merchants' & Bankers' Fire Underwriters v. Williams

> Court of Appeals of Texas · December 29, 1915 · 181 S.W. 859

URL: https://www.frixlaw.com/law-library/cases/9831431

## Case

- **Full name:** Merchants’ & Bankers’ Fire Underwriters v. Williams
- **Court:** Court of Appeals of Texas
- **Decided:** December 29, 1915
- **Citations:** 181 S.W. 859; 1915 Tex. App. LEXIS 1262
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Levy
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9831431

## Opinion text

On Rehearing.
The case of Insurance Co. v. Henry, 79 S. W. 1072 , cited by appellee, does not, as reported, give the entire allegations of the petition held not to be demurrable. Reference to the petition itself in that case discloses an averment in these words:
“By reason of said loss, damage, and policy of insurance, the sum of $171, and for the further sum of $25 attorney’s fees, for the willful failure and refusal to pay this claim when due.”
A declaration, as there, that there was on the part of the insurance company “failure and refusal to pay this claim when due,” sufficiently shows that the policy remained unpaid, and breached, at the time of the institution of the suit. That case is therefore not in conflict with the instant ruling. According to the rule laid down in Brackett v. Devine, 25 Tex. Supp. 196 :
“The conclusion may be deduced, by argument and inference, from the averments of the petition, that a part of the original indebtedness remains unpaid. But the fact should appear by direct averment. An averment of the breach of the contract is essential to show a cause of action.”
:[2] Following the rule, it is believed the demurrer was improperly overruled. And it is not thought the supplemental petition could be considered in connection with the original petition in determining whether or not the demurrer to the original petition should be sustained. The office of the supplemental petition is to make response to the pleading of the defendant. Rule 10, District Court ( 142 S. W. xviii ). The question is sufficiently discussed in Towne’s Texas Pleading (2d Ed.) pp. 401, 447. And in Insurance Co. v. Camp, 64 Tex. 521 , the court says:
“Under the rules, the defects in the petition could only be cured by an amendment, whilst the supplement is confined to the avoidance of matters of defense set up in the answer.”
[3] And while we still think there was error in overruling the demurrer, we are now convinced that the error is not, in this record and in view of rule 62a ( 149 S. W. x ), sufficient to cause reversal. The omission in the petition did not in any manner contribute to the judgment rendered. The undisputed facts show that the company did not pay the claim, but that it denied liability on account of the loss. The case of Rains v. Wheeler, 76 Tex. 390 , 13 S. W. 324 , says:
“If the general demurrer to the petition had been well taken, we are of the opinion that no prejudice has accrued to [appellant] from overruling it.”
And as the allegations in plaintiff’s supplemental petition, tantamount to an allegation that payment had not been made, were properly pleaded to matters set up in defendant’s original answer, such allegations form a proper basis for pleadings before the court, as said in the Wheeler Case, supra, for the rendition of judgment.
[4] It is therefore necessary to proceed to a decision of the other assignments. By the third assignment it is urged that the appellant should have judgment on avoidance, as pleaded by it, of the policy sued on. The policy contained the following:
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the subject of insurance be a building on ground not owned by the insured in fee simple and the title be not evidenced by deed.”
The trial judge made the finding of fact, and the same is without dispute:
“That at the time of the issuance of said policy, and at all times subsequent thereto up to the trial of the cause, plaintiff's title to the ground on which the building stood was not evidenced by a deed, but plaintiff had bought said ground and contracted for the same from the owner thereof, F. P. Smith, in 1913, under a verbal contract, by the terms of which he was to pay $25 for said ground; that said $25 had not been paid at the time of the fire, but in selling same to plaintiff Smith took the personal obligation of plaintiff for the price and did not rely on the vendor’s lien, and would have made a deed to plaintiff at any time on request by plaintiff, even without plaintiff’s paying the $25; that, immediately after said trade was made with said Smith, said Smith, being in possession of said ground, placed plaintiff in possession thereof, and after plaintiff was so placed in possession of same he, relying on his trade with said Smith, erected on said ground permanent and valuable improvements, consisting of a considerable portion of the house destroyed by fire and covered by the policy of insurance sued on.”
As appears from the evidence, appellee was in a condition to enforce specific performance as to the entire title to the lot; and being in that condition, he may, in legal effect, be regarded as the owner in fee-simple title of the ground on which the building stood. Insurance Co. v. Dyches, 56 Tex. 565 ; Insurance Co. v. May, 35 S. W. 829 ; Insurance Co. v. Ruddell, 37 Tex. Civ. App. 30 , 82 S. W. 826 . But the fact is established that the insured’s equitable right to title is not based on a deed. And it is believed that the condition in the policy is not satisfied unless the deed is shown. Considering the condition, the simple and direct intention of the parties is, it is thought, to agree that before any insurance would attach to the building the insured must hold and claim the ground under a written instrument purporting to invest him with an estate absolute or in fee simple. It was in the nature of an exemption, or a condition precedent to in *862 surance. The purpose of this sort of title is, evidently, in order to have the insurance not attach in the first instance to a building on ground of a leaseholder or other person having only some qualified interest in the same, as well as where the person’s claim or interest in the ground rests entirely for proof in parol evidence. The parties may so stipulate as a legal right, and the courts cannot modify or change the same. A want of title of the sort stipulated for renders the policy void. Insurance Co. v. Smith, 29 S. W. 264 ; Eire Ass’n v. Calhoun, 28 Tex. Civ. App. 409 , 67 S. W. 153 ; Insurance Co. v. Wicker, 93 Tex. 390 , 55 S. W. 740 .
We have carefully considered appellee’s contention in respect to the construction of this stipulation, but feel constrained to rule as above. This ruling is decisive of the case; and we here reverse the judgment of the court below, and render judgment in favor of appellant, with all costs of appeal and of the court below.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9831431. Public record. Not legal advice.