Home Ins. Co. of New York v. Henderson

LEVY, J. (after stating tbe facts as above). The question this court is to determine is that of whether or not the insurance company was entitled to a judgment in its favor by virtue of the provision of the policy pleaded as a defense, in view of tbe undisputed evidence that two of the notes were not paid within 10 days after the due date of each ánd both of them. The contract which tbe assured has accepted in this case provides that each one of the 10 outstanding notes given by him shall be by him “wholly discharged on or before 10 days, after the maturity .thereof, without grace,” and in the event of such inaction on his part “this policy shall be void.” The assured wholly failed to pay the notes due January 1, 1922, and February 1, 1922, within 10 days after the due date of the notes. The stipulated 10 days’ time appears, in point of fact, as a reasonable time within which to make the payments after maturity, and no reason or contingency arising preventing the assured from meeting the payments at maturity, or within 10 days afterwards, is presented or urged. The requirement of the policy as to the *652 payment of the notes given by the assured as part of the purchase price of the automobile is a requirement of something to be done following the date of the policy, and therefore legally falls within that class of provisions denominated “promissory warranties.” 2 Cooley on Insurance, p. 1131. The courts of this state have uniformly upheld promissory warranties <?f various sorts, contained in policies of insurance; and where the policy has provided for the avoidance or forfeiture, on account of the breach of a promissory warranty, have put such avoidance or forfeiture into effect, when the evidence warranted same. See Insurance Co. v. Griffin, 66 Tex. 232, 18 S. W. 505; Teutonia Ins. Co. v. Tobias (Tex. Civ. App.) 145 S. W. 251; East Texas Fire Ins. Co. v. Blum, 76 Tex. 653, 13 S. W. 572; Western Assur. Co. v. Kemendo, 94 Tex. 367, 60 S. W. 661; Monger & Henry v. Insurance Co., 97 Tex. 362, 79 S. W. 7; and other cases. A provision against additional insurance in excess of that allowed by the policy is regarded as a stipulation material to the risk involved in insurance. Ætna Ins. Co. v. Waco (Tex. Com. App.) 222 S. W. 217. A similar reason will apply with equal force for the insurers of automobiles not desiring to continue, in force, insurance where the assured owner fails, or becomes unable to pay with reasonable promptness, ,the unpaid purchase price of his automobile. There is, therefore, no reason why the avoidance so contracted for, and so agreed to by the insured, should not be enforced, unless articles 4874A and 4892, Rev. Stat., have application operating to make the alleged defense unavailing. It is believed that article 4874A does not have application to the provision -in suit, since the subject-matter of such stipulation, from its very nature, could not of itself contribute to bring about the destruction of the property by fire. As frequently held, article 4874A has reference only to those warranties ’and provisions, the breach of which might contribute to or bring about a fire loss, and has not application to provisions, the violation of which could not, from their very nature, contribute to or bring about the destruction of property by fire. Insurance Co. v. Driggers, 111 Tex. 392, 238 S. W. 633; McPherson v. Insurance Ass’n (Tex. Com. App.) 222 S. W. 211; Ætna Ins. Co. v. Waco (Tex. Com. App.) 222 S. W. 217; Insurance Co. v. Levy & Rosen (Tex. Com. App.) 222 S. W. 216; Firemen’s Ins. Co. v. Alonzo, 112 Tex. 283, 246 S. W. 83; Humphrey v. Insurance Co. (Tex. Com. App.) 231 S. W. 750. Also, we think, article 4892, Rev. Stat., does not affect the stipulation here in question. This article undertakes to prohibit and make “absolutely null and void” any provision in any policy, viz.: “To the effect that if said property is incumbered by a lien of any character or shall after the issuance of such policy become incumbered by a lien of any .character, that such incum-brance shall render such policy void.” The intention of the article, plainly, is that, so far as the conditions and provisions of the statutory standard policy go, a clause or provision of the particular prescribed kind and form could not be used in such standard policy, and if inserted therein it would be “absolutely null and void,” and “of no force and effect.” The language of the article does not prohibit, nor impose, any limitation upon the exercise of any right or power upon the part of the assured and the insurance company to make any special express agreement, as a new term of contract independent of the statutory standard policy and not conflicting therewith, pertaining to “incumbrances.” And the provision in suit was a special agreement, different in kind and form from that referred to in the above article. The particular provision referred to in the article mentioned operates to render the policy void upon the mere fact that “the said property be in-cumbéred” at the date of the policy of after-wards. The provision in suit is otherwise, and to the extent only of a requirement that certain outstanding lien notes specially mentioned be paid on or before a particular day. Such stipulation was specially entered into because it was contemplated to insert a loss payable" clause in favor of the seller of the automobile holding the purchase-money notes. The fact of incumbrance or lack .of incumbrance, merely as such, at the date of the policy, or after its date, is not in terms dealt with by the parties. Lien notes may, in legal effect, constitute an incumbrance against property, but there is a distinction between a contractual requirement to pay the notes at a particular time and a contractual requirement that no incumbrance at.all shall either exist presently, or happen after the date of the policy. The judgment is reversed, and judgment is here rendered in favor of the appellant, with costs of the trial court and of this appeal.