Texas Nat. Fire Ins. Co. v. White, Blakeney & Fuller Dry Goods Co. ( 1914 )

If, as appellees claimed and the jury found was true, appellant agreed in writing that the policy should cover the goods while in the Fuller building, and that appellees might procure additional insurance as they did, we think it should not be heard to deny liability on the ground merely that the slips or riders evidencing its agreement were never attached to the policy. It was not shown that appellees were authorized to so attach the slips. On the contrary, it appeared from the face of the policy that attaching them was as much an act solely to be performed by appellant as would have been the act of indorsing such an agreement on the policy. Therefore we think the delivery of the slips to appellees should be construed as a waiver by appellant of the provision in the policy requiring them to be attached to it. To hold otherwise, it seems to us, would be to say that appellant in making and delivering the slips as it did was attempting to mislead appellees to believe it intended thereby to bind itself by a valid contract, and so to perpetrate a fraud upon appellees. Appellees, we think, had a right to assume appellant was acting in good faith, and when, without first demanding the policy and attaching the slips to it, and without conferring upon them authority to so attach same, it delivered the slips to them, it intended thereby to bind itself, and to waive the requirement of the contract that the slips should be attached to the policy. To permit appellant after a loss occurred to claim it was not liable merely because the slips were not so attached, under the circumstances stated, we think would be very unfair to appellees, and the countenancing as proper, conduct on the part of appellant calculated to induce, and which doubtless did induce, appellees to believe it intended to bind itself to indemnify them against loss of the goods by fire while in the Fuller building, and therefore to forego exercising their right to have the policy canceled and a new one issued. We do not think either principle or authority demands the recognition of a right existing in appellant to make such a claim. New Orleans Ins. Ass'n v. Griffin Shook, 66 Tex. 232, 18 S.W. 505; Wagner Chabot v. Insurance Co., 92 Tex. 549, 50 S.W. 569; Insurance Co. v. Hardin, 151 S.W. 1152.

The other contention made by appellant, to wit, that it was not bound by the agreement that the policy should apply to the goods while in the Fuller building, because its agent who made it was not authorized to waive the provision in the policy which restricted its operation as indemnity against loss of the goods by fire only while they were in the Wilson building and not elsewhere, we think also should be overruled. The question made by the testimony relevant to this phase of the case was not one as to a waiver or not by appellant of a right it had to declare the policy invalid because of the removal of the goods from the Wilson building; for it did not have such a right. The removal of the goods was not a breach by appellees of any term of the contract. Therefore there was nothing for appellant to waive. Assurance Co. v. Miller, 91 Tex. 414, 44 S.W. 60, 39 L.R.A. 545, 66 Am. St. Rep. 901; Hollings v. Bankers' Union, 63 S.C. 192, 41 S.E. 92; Thompson v. Gorner, 4 Cal.Unrep. 606, 36 P. 434; Insurance Co. v. Lumber Co., 11 Okla. 585, 69 P. 938; San Bernardino Ins. Co. v. Merrill,108 Cal. 490, 41 P. 487. The question made by the testimony, we think, was one as to whether or not the transaction evidenced by the slip created a new contract between the parties, or, what in legal effect would be the same thing, so modified the old contract as to make it apply to the goods while in the Fuller building. We think the effect of the transaction was to so modify the contract. If it was, then it cannot be doubted that appellant's manager as such had power to bind it by the agreement he made for it in its name. It is clear he might have canceled the policy and bound appellant by the issuance of another one covering the goods while in the Fuller building. If he might have done this, then certainly he might have accomplished the same thing by agreeing that the old policy should cover the goods in their new location. The objection made that it did not appear that there was a consideration for such a modification of the contract clearly is without merit. Appellees might have demanded a cancellation of the policy as originally written and a return to them of the unearned premium paid on it. Their forbearance to do this alone was a sufficient consideration for the undertaking on the part of appellant that the indemnity provided by the policy should apply to the goods in their new location.

We think there is no error in the judgment, and therefore will affirm it.