
    HOME INS. CO. v. FORT WORTH GRAIN & ELEVATOR CO.
    (No. 635-4255.)
    (Commission of Appeals of Texas, Section A.
    March 11, 1925.)
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Locke & Locke, of Dallas, for plaintiff in error.
    J. W. Stitt, W. D. Smith, and Capps, Cantey, Hanger & Short, all of Fort Worth, for defendant in error.
   BISHOP, J.

This is a companion case to that of German Alliance Insurance Company v. Fort Worth Grain & Elevator Co., 269 S. W. 430, with which it was submitted, and we refer to our opinion in that case for a statement of the facts and decision of the question on which our recommendation in this case is-based. The same property was insured by this policy, and the facts as to liability in both cases are practically the same. The policy insured the machinery in the sum of $300, and stock of grain and feedstuff in the sum of $700. In the district court judgment was rendered for the-sum of $1,000, the full amount of the policy, with interest, and this judgment was by the Court of Civil Appeals affirmed. 262 S. W. 870.

There was evidence indicating, that the adjuster knew of the breach of the provisions of the policy by the transfer of an interest in the partnership at the time he assured the insured' that the amount of loss would be paid, but there was no evidence tending to show that at that time the adjuster or insurance company knew that the inventory had hot been taken as-provided in the record warranty clause of the policy, and for this reason the insurance company cannot be held to have waived its right to rely on a forfeiture, and insured should be denied recovery for any sum by reason of the loss of their stock of grain and feedstuff.

We therefore recommend that the judgments-of both the district court and the Court of Civil Appeals be so reformed as to allow recovery only for the loss of machinery amounting to $300, with interest.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals both reformed, as recommended by the Commission of Appeals, and as reformed, affirmed.  