Robertson, Associate Justice.
This suit was brought by appellees upon a policy of insurance against fire, issued by appellant to ET. Ellenstein, for $1,500, upon a stock of merchandise in store at Alto, Texas. The insured property was consumed by fire on the night of March 17, 1883, and the policy in suit was transferred by Ellenstein to Wernstein & Bro., and by them to the appellees, and these transfers were indorsed on the back of the policy, which was made an exhibit to the plaintiffs’ petition.
As the genuineness of these transfers was not put in issue by a plea under oath, the court below did not err in admitting them in evidence over appellant’s objection without proof of their execution. Revised Statutes, art. 271.
The contract of insurance declared upon required the assured to give immediate notice, in writing, to the company of any loss or damage by fire sustained by him, and “ as soon thereafter as possible ” to furnish proof of loss in the manner particularly specified in the policy, and the loss is made payable “ sixty days after such notice and proof ” of loss “ shall have been made by the assured, and received at the office of the company in New Orleans.” There was no allegation in the plaintiffs’ petition that such proof had been made, nor directly that it had been waived; but it was averred that the company was fully advised of the circumstances attending the fire as far as they could be ascertained, and had refused to adjust [525]*525the loss, and had refused to recognize the contract. Appellant excepted to the petition specially on the ground that there was no averment of proof of loss, nor allegation that the proof had been waived, and the exception was overruled by the court. The condition of the policy respecting the proof of loss was not mentioned in. the petition, and it is only inferentially that the general averments referred to can be made to apply at all to a waiver of that condition. This condition is inserted for the benefit of the company, and intended to enable it to determine in the first instance upon the representations of the assured, required to be made in good faith by penalties prescribed in the contract, the existence and extent of the liability incurred by it, and the condition may be waived by the company expressly, or by any acts which fairly imply that the condition will not be insisted upon.
If it is in the power of the court under our law to determine at all what acts will amount to such waiver, that those so generally averred in plaintiffs’ petition would have this effect was incorrectly held. The allegation of the conclusion of fact that the condition was waived can certainly only be dispensed with when the facts averred admit of no other fair conclusion. For aught that appears in the plaintiffs’ petition, the company may have been advised of the circumstances attending the destruction of the insured property by an attorney employed to conduct an inquest, or it may have ignored the policy and repudiated liability for the very reason that the proofs required by the condition precedent had not been furnished.
The recognition by the court in its charge of the validity and materiality of this condition renders it probable that the court below, in acting upon the exception to the original petition, considered that pleading as amended by the averments of the supplemental petition that the condition was both complied with and waived. Under the rules, the defects in the petition could only be cured by an amendment, whilst the supplement is confined to the avoidance of matters of defense set up in the answer. The supplemental petition shows that proof of loss was furnished less than sixty days before the commencement of the suit, and the evidence neither sustained the averment that proof was waived, nor authorized the charge upon that issue. O. T. Bonner seems to have had nothing to do with the loss, except to prosecute the inquest upon the fire authorized by our criminal .laws. W. R Moore was the agent who issued the policy. It does not appear that he had anything to do with the loss. His meeting with Ellenstein after the fire seems to [526]*526have been accidental. He stated that the company would not pay until Ellenstein was cleared of arson. Calder testified that Moore had no authority to waive any condition in the policy, and neither his words nor his acts tended to prove a waiver of proof of loss. Lafland & Co., the general agents of the company, on the other hand, demanded that the proof should be furnished. It was proven, however, that less than sixty days before the suit was filed, proofs were forwarded to the company. Nearly two years, after the proof was forwarded, elapsed before the trial, and the plaintiffs might readily have relieved the case of all these embarrassments by filing an amended original petition containing the proper averments. The fact, then, that the suit was originally commenced before the maturity of the demand would only have affected the question of costs. Cox v. Reinhardt, 41 Tex., 591.
The court below in the charge to the jury considered as one the distinct rights of appellant, secured by a provision in the policjq to have upon demand an examination of the assured under oath, and a production of the books and vouchers connected with the business of the assured. The burning of some of his books would not excuse the failure to produce those that were saved, and the examination under oath might be required independent of the books and vouchers. Whether there was any demand communicated to Ellen-stein has not been discussed.
Appellee defends the ruling of the court in admitting in evidence, over appellant’s objection, the bill of indictment against Ellenstein and Tobionsky for arson, and the judgment of acquittal, only on the ground that appellant had introduced the verdict of the jury of inquest on the fire casting a suspicion on Ellenstein. We do not find that verdict in the statement of facts, and can discover no legitimate purpose to be compassed by the admission of the bill of indictment and judgment of acquittal. Appellant’s objection to their introduction should have been sustained.
Ellenstein and one Guensbery had been partners in the mercantile business, and at the date of the latter’s death on December 1, 1881, they had assets amounting to about $20,000, in which Guensbery owned two-fifths interest and Ellenstein the remaining three-fifths, and they owed about $18,000. Their stock of merchandise at the date of the dissolution of the partnership by Guensbery’s death was valued at $4,800. Ellenstein qualified as administrator of Guensbery’s estate, and continued the mercantile business on the stock formerly owned by the firm. He added to this stock by purchases after Guensbery’s death. This was the stock covered by the policy [527]*527of insurance sued upon, and in it at the date of the fire was some of the merchandise of the old firm. At the January term (before the fire in March) of the county court of Cherokee county, in which the administration of Guensbery’s estate was proceeding, Mr. Ellen-stein reported a sale of his intestate’s interest in this stock of merchandise to Leopold Tobionsky on six months’ credit for $1,167.36. In February of the same year he reports that he has paid upon the old firm debts more than he has realized from its assets, and submits that he should be allowed to retain the intestate’s interest in the stock of goods to reimburse him.
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Robertson, Associate Justice.
This suit was brought by appellees upon a policy of insurance against fire, issued by appellant to ET. Ellenstein, for $1,500, upon a stock of merchandise in store at Alto, Texas. The insured property was consumed by fire on the night of March 17, 1883, and the policy in suit was transferred by Ellenstein to Wernstein & Bro., and by them to the appellees, and these transfers were indorsed on the back of the policy, which was made an exhibit to the plaintiffs’ petition.
As the genuineness of these transfers was not put in issue by a plea under oath, the court below did not err in admitting them in evidence over appellant’s objection without proof of their execution. Revised Statutes, art. 271.
The contract of insurance declared upon required the assured to give immediate notice, in writing, to the company of any loss or damage by fire sustained by him, and “ as soon thereafter as possible ” to furnish proof of loss in the manner particularly specified in the policy, and the loss is made payable “ sixty days after such notice and proof ” of loss “ shall have been made by the assured, and received at the office of the company in New Orleans.” There was no allegation in the plaintiffs’ petition that such proof had been made, nor directly that it had been waived; but it was averred that the company was fully advised of the circumstances attending the fire as far as they could be ascertained, and had refused to adjust [525]*525the loss, and had refused to recognize the contract. Appellant excepted to the petition specially on the ground that there was no averment of proof of loss, nor allegation that the proof had been waived, and the exception was overruled by the court. The condition of the policy respecting the proof of loss was not mentioned in. the petition, and it is only inferentially that the general averments referred to can be made to apply at all to a waiver of that condition. This condition is inserted for the benefit of the company, and intended to enable it to determine in the first instance upon the representations of the assured, required to be made in good faith by penalties prescribed in the contract, the existence and extent of the liability incurred by it, and the condition may be waived by the company expressly, or by any acts which fairly imply that the condition will not be insisted upon.
If it is in the power of the court under our law to determine at all what acts will amount to such waiver, that those so generally averred in plaintiffs’ petition would have this effect was incorrectly held. The allegation of the conclusion of fact that the condition was waived can certainly only be dispensed with when the facts averred admit of no other fair conclusion. For aught that appears in the plaintiffs’ petition, the company may have been advised of the circumstances attending the destruction of the insured property by an attorney employed to conduct an inquest, or it may have ignored the policy and repudiated liability for the very reason that the proofs required by the condition precedent had not been furnished.
The recognition by the court in its charge of the validity and materiality of this condition renders it probable that the court below, in acting upon the exception to the original petition, considered that pleading as amended by the averments of the supplemental petition that the condition was both complied with and waived. Under the rules, the defects in the petition could only be cured by an amendment, whilst the supplement is confined to the avoidance of matters of defense set up in the answer. The supplemental petition shows that proof of loss was furnished less than sixty days before the commencement of the suit, and the evidence neither sustained the averment that proof was waived, nor authorized the charge upon that issue. O. T. Bonner seems to have had nothing to do with the loss, except to prosecute the inquest upon the fire authorized by our criminal .laws. W. R Moore was the agent who issued the policy. It does not appear that he had anything to do with the loss. His meeting with Ellenstein after the fire seems to [526]*526have been accidental. He stated that the company would not pay until Ellenstein was cleared of arson. Calder testified that Moore had no authority to waive any condition in the policy, and neither his words nor his acts tended to prove a waiver of proof of loss. Lafland & Co., the general agents of the company, on the other hand, demanded that the proof should be furnished. It was proven, however, that less than sixty days before the suit was filed, proofs were forwarded to the company. Nearly two years, after the proof was forwarded, elapsed before the trial, and the plaintiffs might readily have relieved the case of all these embarrassments by filing an amended original petition containing the proper averments. The fact, then, that the suit was originally commenced before the maturity of the demand would only have affected the question of costs. Cox v. Reinhardt, 41 Tex., 591.
The court below in the charge to the jury considered as one the distinct rights of appellant, secured by a provision in the policjq to have upon demand an examination of the assured under oath, and a production of the books and vouchers connected with the business of the assured. The burning of some of his books would not excuse the failure to produce those that were saved, and the examination under oath might be required independent of the books and vouchers. Whether there was any demand communicated to Ellen-stein has not been discussed.
Appellee defends the ruling of the court in admitting in evidence, over appellant’s objection, the bill of indictment against Ellenstein and Tobionsky for arson, and the judgment of acquittal, only on the ground that appellant had introduced the verdict of the jury of inquest on the fire casting a suspicion on Ellenstein. We do not find that verdict in the statement of facts, and can discover no legitimate purpose to be compassed by the admission of the bill of indictment and judgment of acquittal. Appellant’s objection to their introduction should have been sustained.
Ellenstein and one Guensbery had been partners in the mercantile business, and at the date of the latter’s death on December 1, 1881, they had assets amounting to about $20,000, in which Guensbery owned two-fifths interest and Ellenstein the remaining three-fifths, and they owed about $18,000. Their stock of merchandise at the date of the dissolution of the partnership by Guensbery’s death was valued at $4,800. Ellenstein qualified as administrator of Guensbery’s estate, and continued the mercantile business on the stock formerly owned by the firm. He added to this stock by purchases after Guensbery’s death. This was the stock covered by the policy [527]*527of insurance sued upon, and in it at the date of the fire was some of the merchandise of the old firm. At the January term (before the fire in March) of the county court of Cherokee county, in which the administration of Guensbery’s estate was proceeding, Mr. Ellen-stein reported a sale of his intestate’s interest in this stock of merchandise to Leopold Tobionsky on six months’ credit for $1,167.36. In February of the same year he reports that he has paid upon the old firm debts more than he has realized from its assets, and submits that he should be allowed to retain the intestate’s interest in the stock of goods to reimburse him. What was done with this report does not appear; but in July of the same year, after the fire, the administrator reports that the stock of merchandise had been burned, and that he charges himself with two-fifths of its value. Ellen-stein states in his testimony that he all the while considered himself the owner of the property insured, but whether he was such owner or not was not regarded by the court below as an issue in the case. The jury were informed that as surviving partner he had an insurable interest, and this was incontrovertibly true. But the policy provided “ that if the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, ... it must be so expressed in the written portion of the policy, otherwise the policy shall be void.” There was no such expression of a less interest in the written portion of the policy, and by the terms of the contract sued upon, if he was not such sole and unconditional owner., for his own use and benefit, appellees could not recover.
Ellenstein’s unqualified right to three-fifths of the original stock on hand at the death of Guensbery and to all he had subsequently added to the stock is not questioned. But at the date of the policy and at the time of the fire there still remained on hand, covered by the policy, a portion of the original stock. What became of Guensbery’s interest in that portion of the stock is the question. Ellen-stein was neither his heir, legatee or vendee — he was administrator; but as such he had no title or ownership of the property of his intestate, and in this capacity he had not, as against the surviving partner, the right of sole or even concurrent possession. But he was also surviving partner. In this right at common law he succeeded to the legal title to all the personalty belonging to the late firm, in trust, however, not for his own use and benefit, but for the payment of the partnership debts “ and distributing the residue among the parties entitled.” Bindley on Partnership, vol. 2, p. at bot. 898, note 1.
[528]*528In Bush v. Clark, 127 Mass., 111, it was said that the survivor did not hold the legal title to the partnership property in trust, but as owner, and out of the partnership assets an allowance was made to the widow of the survivor upon his death, although enough was not left to pay the partnership debts. It does not appear from the report of the case that the amount of the allowance exceeded the interest of the intestate in the partnership effects on hand. But even under this authority the ownership accredited to the surviving partner is not for his own use and benefit, but to pay debts and distribute the remainder, if any. The courts and text books generally describe such ownership as a trust. Whether the interest of the survivor is legal or equitable, or whether he is or not a trustee, can make no difference, since it seems indisputable that he is not the sole and unconditional owner, for his own use and benefit, upon any authority, or tested by any theory of law. The risk increases as the interest of the assured is lessened, and the condition that the actual interest, if less than that perfect proprietorship described in the policy, shall be stated in the policy, is sustained by greater reason than supports many material warranties in such contracts. But whether reasonable or not can make no difference. The parties have made the agreement and put it in language unambiguous and emphatic; it is neither immoral nor against public policy, and we have been able to discover no law to prevent the consummation of the lawful intent of the parties, plainly expressed. Upon the pleadings and in the evidence the issue was clearly made, and the special charge upon it requested by appellant should have been given.
Other assignments of error than those considered are discussed in the briefs, but as the questions raised are not likely to arise upon another trial, they have not been considered.
For the errors indicated in this opinion the judgment of the court below will be reversed and the cause remanded.
Bevebsed and eemanded.
[Opinion delivered. October 23, 1885.]