The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-03-28


| morigags upon the insured property. The
evidence shows that the agent examined
the property and made no Inquiry as to
the existence OF the NOR, Cages. The ex-
animation OF horse could furnish no
notice OF the existence Of an incum-
hrance upon II as would the examination
hcnce such examination could not be
notice of what 1t could not disclose.
THERE being no acts done by the agent
from which waiver or estoppel. could
arise, we come TO the question, Was II
the duty OF tho agent TO inquire as to
me REMEMBRANCE upon the insured prop
oriyf That such duty does not devolve
upon the insurer when no printed or
written application Is presented IL n prop
osiuon supported by the best authorities.
IL 1t he held to be the duty OF the in
surer to make inquiry as TO the existence
OF such mortgages. the same rule must
apply TO all other warranties relating TO
the condition of the property at the time
that the policy IS issued and the result
would he that the insurer would be held
10 have waived warranties when he did
not know OF the existence of the thing
| =, which the waiver applied. IT would
follow that II the insurer did inquire and
was Informed as to the facts II would
aso he waiver; from which II would
! likewise follow that the insured could
only be bound by a warranty contained
IN his policy in case he made false repre-
sentaticns or was guilty OF concSalment
uron inquiry made of him by the In
sircr, thus all warrantles would he con-
Vfrted into representations and the bind
irs force OF warrantics as such destroyed
! u is a legltimatc subject Of legislation,
h1t not Within the power of courts to 20
change tho law. We conclude that, upon
: Tie facts OF the case as presented here.
70 does not appear that the insurer
waived the clause and that the law does
not require that tt should have made in
curry as to membranes. and that Ahe
cpfrts below erred In 50 holding. Re
ysrsed and remanded.
Opinion by Brown j.
TH.XAS AND PACIFIC COAL CoMPA-
Ny vs.. THOMAS LAWSON suit to re-
cover damages for breach of contract;
from Hood county. Second dlstrictRe-
Versed and reman1ed.
The coal company entered into a con
tract with Lawson by the terms OF which
it was to furnish him u place Of business.
agreed that during the term of the lease
It would not permit any other saloon to
do business at Thurher, that it would pay
or Its employees in checks instead of
money, and would redeem weekly such of
said checks az Lawson might take in for
/ liquors sold. and Lawson agreed to com
duct the business, TO furnish monthly
statements thereof, and to pay the COM
pany two-thirds the profits in return for
The use OF the promises and the exclusive
privileges guaranteed him by the CON
! tract.
J. The first question we will consider is
whether the contract created a trust with
~ INC meaning OF chapter M. page IA, of
the acts OF 1883, which defines Il trust to
pr combination of capital, skin or acts
! ny Two or more persons, firms, corpora
| tlons or associations OF persons for
any OF the following purposes; l.
trade 5, to prevent competition in
tAs sale or purchase Of comm0di-
ttes, and declares that any contract in
violation of the provisions of the act shall
ps ABSOLUTELY void and not enforceable
inlaw or equity. The statute ignores the
common law distinction between restric-
IONS which are reasonable and those
N4.ch are not and commodities which
re ot prime necessity and those which
are not. 1t relieves the courts Of the diff
! licuiiy OF determining whether in a par
uc0lar case any effect will he given such
q contract. The word combination" ay
used IN the statute, means union or as
| Suclatlon. Ii is clear that the contract
pr1'iIod for aud contemplated a union or
association of capital aud acts by the coal
company and Lawson, 1t is apparent
from the face of the contract thai the
purpose of the parties In entering into the
| cQmbination was. as far as they might he
abe, % TO restrain any other person
rom entering into the business of lluuor
selling to the people Of Thurber during
the lease' (O to prevent the employees Of
me company from purchasing liquors
from any other person than Lawson; 60
| to Influence such employees to squandor
| their earnings in the saloon, erected and
maintained under the terms OF the con-
tract principally for the benefit Of the
We are OF the opinion that the purpose
OF the combination was to create and
carry out a restriction on the sale of
/ liquors at Thurber, and also TO prevent
| competition in the sale and purchase
thereof II results that tho contract ere
ated trust within the meaning of the
statute and Is therefore void and no ac-
ton or counterolaim can be founded there
on.
While we place our decision on the stat
al
contract at common law.
IT. is claimed that this court has no iu-
risdiction TO consider the illegality of the
contract, since that question was not
raised in the court below and not assigned
as error here.
1t is wholly immaterial that the Invalid
ity of the contract was not specifically
raised by the pleading or assignments Of
| error FOR every special exception to the
volve the general objection to It's legality
or competency in any event Parties lit
CANT can not. by EXPRESS waiver, induce a
tract and administer their supposed rights
hereunder, based upon the assumption of
its legality and certainly Il mere omission
to notice such vice or bring 1t to the at
tention of the court can not have that ef-
feet.
Opinion by Denman. ].
AMORY MANUFACTURING COMPANY
vs.. GUILE, COLORADO AND SANTA
FFl RAILWAY COMPANY. suit to re-
cover inc NHlue OF flfty bales OF cotton
destroyed by fire while In the hands OF
the railway company; from Dallas coun-
y, Fifth district - Reversed and rem
dered.
Tho cotton was bought by T. IT, Brown
Co and was placed upon the platform
OF compress company at Honey Grove,
Texas, for the purpose of being com
pressed. While it was still in the possess
sion of the compress company, and upon
Its platform, the defendant IN error exc
cuted to Brown & Co. a bill of lading
therefor, in which. upon certain condi-
tons, IL bound itself to transport the cot
ton to Manchester. y. H. After the exc
cntion OF the bill OF ladiug, and while the
cotton still remained upon the platform,
IL was destroyed by fire. II was admitted
upon tho trial below that ut the time of
the loss by fire the cotton was the prop
erty Of plaintiff The trial court found
that the fire was not the result of negll-
gence on the part OF the defendant com
pauy, and held that by reason of certain
stpulations IN the bill of lading, which
restricted its liability as at common law
the defendant was not liable. The tudg-
mcnt of the trial court was affirmed by
the court of civil appeals.
The bill OF lading stipulated that Meth
er the initial carrier nor any connecting
| lire should he liable for loss or damage
to cotton while in transit, or while in de-
pot or place OF transshipment or at place