
    GERMAN ALLIANCE INS. CO. v. FORT WORTH GRAIN & ELEVATOR CO.
    (Motion No. 6618.)
    (Commission of Appeals of Texas, Section A.
    June 27, 1925.)
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    On motion for rehearing; setting aside former judgment (269 S. W. 430), and reversing judgment of Court of Civil Appeals (257 S. W. 273).
    Locke & Locke, of Dallas, for plaintiff in error.
    J. W. Stitt, W. D. Smith, and Capps, Can-tey, Hanger & Short, all of Fort Worth, for defendant in error.
   BISHOP, J.

The defendants in error insist that justice will probably be better sub-served by reversing the judgments of the district -court and Court of Civil Appeals and remanding the cause, than by so reforming said judgments as to deny them a recovery for the loss of the stock of goods, as was done.

After due consideration, we are inclined to agree with this contention. It is evident that on the trial of the case ⅜6 district court was of the opinion that it was not necessary for the insured to prove that at the time the adjuster assured the defendants in error that the loss would be paid he knew that all the record warranty clauses contained in the policy had not been complied with. It seems that the case was tried on the theory that the insured could prove a waiver by showing that the adjustor knew that the insurance company had a right to insist on a forfeiture at the time he made the,promise to pay the loss, regardless'of whether he knew of all the grounds on which forfeiture could be claimed. The court seems to have disregarded the fact that the insurance company might have been willing to waive one ground of forfeiture, while it ■would not have been willing to waive another and different ground. The case having been tried on this theory, we cannot say that, had the insured been required by the trial court to show that all grounds of forfeiture had been waived, this could not have been done.

Being of the opinion that justice may probably be better' subserved thereby, we recommend that the judgment heretofore rendered, reforming and affirming the judgments, be set aside, and that the judgments of the Courl! of Civil Appeals and district court be reversed, and the cause remanded to the district court.

CURETON, C. J.

On rehearing. All previous judgments vacated, and judgments of the district court and Court of Civil Appeals Doth reversed, and cause remanded to the district court.  