Norwich Union Fire Ins. Soc., Ltd. v. Citizens' Building & Loan Ass'n , 1928 Tex. App. LEXIS 532 ( 1928 )

Whether appellant's contention that it was liable only for the amount of the note at the date of the fire and 6 per cent. interest thereon from the time it ought to have paid same should be sustained, or, instead, that of appellee, that appellant was liable to it for the amount of the note at the date of the fire and for interest thereon at the rate of 10 per cent. per annum and attorney's fees as stipulated for in the note and mortgage, and for fines assessed as provided in the by-laws hereinbefore referred to, was the question in the court below. We think that court determined it correctly when he upheld the contention of appellee. The undertaking of appellant, in the event of loss of the property by fire, was to pay the amount it thereby became liable for, to wit, $1,600, to appellee "as its interest might appear." Laurenzi v. Ins. Co.,131 Tenn. 644, 176 S.W. 1022. That interest, it appeared, was the indebtedness of the Norrises to appellee, determined according to the terms of the note and the mortgage securing it on the insured property. So determined, that indebtedness amounted to $1,205.53 at the date of the fire, and payment of that amount to appellee at that time would have satisfied its claim. Appellant argues and cites authorities to show that the rights of the parties to the contract were "fixed at the time of the fire." We agree they were, but as between appellant and appellee we think they became fixed as indicated by what has been said above — that is, that appellant then became bound to pay appellee the amount of Norrises' indebtedness according to the terms of the note and mortgage. The contract evidencing that indebtedness became, in effect, appellant's contract; and it became liable, as the Norrises did, for breach of the terms thereof. Such, as we understand it, was the holding, in effect, of the Court of Civil Appeals in Panhandle Nat. Bank v. Security Co., 61 S.W. 731. And see Insurance Co. v. Thomasson (Ky.)84 S.W. 546; Kissire v. Grocer Co., 103 Ark. 473, 145 S.W. 567; Bonham v. Johnson, 98 Ark. 459, 136 S.W. 191; 26 C.J. 438.

The judgment is affirmed.