Indeed, in Phoenix Assur. Co. v. Bulloch, Tex. Civ. App. 27 S.W.2d 571, writ of error refused, it is squarely held that promise of payment of the loss by an adjuster after knowledge of a breach of the record-warranty clause constitutes a waiver of the right to compel a forfeiture, which holding apparently rested upon facts not in effect dissimilar to those the jury so found existed in this case. Other holdings on this subject are reflected in these cases: Home Ins. Co. v. Fort Worth Grain Elevator Co., Tex. Civ. App. 262 S.W. 870, modified in Tex.Com.App., 269 S.W. 432; Occidental Fire Ins. Co. v. Fort Worth Grain Elevator Co., Tex. Civ. App. 294 S.W. 953, writ of error refused; National Standard Fire Ins. Co. v. Hubbard, Tex. Civ. App. 31 S.W.2d 859. From these decisions the rule seems to be that such nonwaiver agreement did not preclude a subsequent agreement by the adjuster to pay the fire loss, where the insured so furnished additional proof thereof at the expenditure of time, money, and trouble on his own part.
"Q. Was that the time Mr. Williford Ashy or someone presented the books and accounts and invoices and inventories and sales books of the Fair Store or Ashy Store? A. The same time." On the following authorities, the court did not err in refusing to instruct a verdict in appellant's favor on the issue for the failure to furnish proof of loss: Chicago F. M. Ins. Co. v. Herring, Tex.Civ.App. 54 S.W.2d 236; Occidental Fire Ins. Co. v. Fort Worth Grain Elevator Co., Tex.Civ.App. 294 S.W. 953, writ refused; London Lancashire Ins. Co. v. Higgins et al., Tex.Civ.App. 68 S.W.2d 1056; National Standard Fire Ins. Co. v. Hubbard, Tex.Civ.App. 31 S.W.2d 859; Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210; Franklin Fire Ins. Co. v. Britt, Tex.Civ.App. 254 S.W. 215; Firemen's Fund Ins. Co. v. Galloway, Tex.Civ.App. 281 S.W. 283. Appellant's third point is that, on the undisputed evidence, appellee was not the sole and unconditional owner of the insured property.
Continental Casualty Co. v. Curtis Pub. Co., 3 Cir., 94 F.2d 710; Central Surety Insurance Corp. v. London Lancashire Indemnity Co. of America, 181 Wn. 353, 43 P.2d 12; Michigan Alkali Co. v. Bankers Ind. Ins. Co., 2 Cir., 103 F.2d 345; Clements v. Preferred Accident Ins. Co., 8 Cir., 41 F.2d 470, 76 A.L.R. 17; Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 110 A.L.R. 529; Couch on Insurance, ยง 186; Philadelphia Underwriters', etc. v. Moore, Tex.Com. App., 229 S.W. 490; First Texas Prudential Ins. Co. v. Ryan, Tex.Com.App., 82 S.W.2d 635; Burns v. Bankers' Life Co., D.C., 24 F.2d 714; General American Life Ins. Co. v. Day, Tex. Civ. App. 89 S.W.2d 1012; National Standard Fire Ins. Co. v. Hubbard, Tex. Civ. App. 31 S.W.2d 859. It is further contended by appellant that the judgment rendered in cause No. B-84724 was an agreed judgment and therefore amounted to an assumption of liability by Paramount Pictures and its liability was thereby waived.
And in 5 Cooley's Briefs on Insurance (2d Ed.) p. 3987, the following is said: "Though it was asserted in the early case of Phoenix Ins. Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am.Dec. 521, that an adjuster for an insurance company did not have power to waive a forfeiture, the rule supported by the weight of recent authority is that an adjuster authorized to adjust a loss has power to waive forfeitures." See, also, 8 Cooley's Briefs on Insurance (2d Ed.) pp. 4448 and 4456, subd. A-3; National Standard Fire Ins. Co. v. Hubbard (Tex.Civ.App.) 31 S.W.2d 859. In connection with special issue No. 3 inquiring whether or not plaintiffs suffered a total loss of the property involved, and to which the jury answered "Yes," the court gave this instruction: "In considering question No. 3 you are instructed that a policy of insurance applies to the property insured in its then character and when such property has been damaged to such an extent as to lose its identity and its specific character it constitutes a total loss.
It is also the law that "the slightest evidence indicating waiver of forfeiture will support a jury finding to that effect." Nat. Standard Fire Insurance Co. v. Hubbard (Tex.Civ.App.) 31 S.W.2d 859, 860. So, the courts hold generally that an insurer is estopped to assert that a fire policy is avoided where, after the insured property has been destroyed by fire, with knowledge of the breach making the policy void, it demands and accepts payment of the past-due and unearned premiums.