incumbrances thereon, and that said tender and demand had been refused. In his pleadings, plaintiff made the same tender upon the same conditions, and prayed for judgment against Blakney for title to the property free of any lien for the balance of the purchase price which Whitley agreed to pay for the property. Plaintiff further alleged that, in consideration for the assignment of the contract to him, he paid to Kinchen the sum of $250, and conveyed to him another lot in $250, and conveyed to him another lot in Ft. Worth, known as lot 16, in block 83, on Lincoln avenue. According to further allegations in his petition, plaintiff was induced to make such purchase by certain false and fraudulent representations made to him by Kinchen which were pleaded as follows: "That as soon as said plaintiff herein shall have paid under said contract the sum of onefourth (4) of the said thirty-two hundred and fifty ($3,250.00) dollars, that the said J. R. Blakney would make, execute and deliver to this plaintiff a general warranty deed to said property free of any and all liens and incumbrances and that all this plaintiff would have to pay for said property would be the said sum of eight hundred twelve and 50/100 ($812.50) dollars to the owner of said contract, to wit, J. R. Blakney, and that said sum of two hundred and fifty ($250.00) dollars so paid by him together with the sum of eight hundred twelve and 50/100 ($812.50) dollars to be paid to the other party to said contract was all that said plaintiff herein would have to pay for said property." Plaintiff's prayer for judgment was as fol lows: "That he have judgment against all of the defendants forever quieting his title to the property in controversy upon payment of the said one-fourth of the $3,200.00 to the said J. R. Blakney; or in case the court should hold that such was not the meaning of the contract between the parties originally, to wit, L. H. Whitley and J. R. Blakney, and that there was fraud, accident or mistake in the statement of the matter to this plaintiff, by the defendant C. R. Kinchen as above alleged, then he prays that the deed made by him to the lot 16 in block 83, of North Ft. Worth, Tarrant county, Texas, situated on Lincoln avenue, be canceled, set aside and for naught held, and that the legal and equitable title to same be declared to be in this plaintiff, and all cloud upon plaintiff's title by reason thereof be removed, that he have judgment against all of said defendants for the sum of money so paid to the said Kinchen. ***" In the same connection plaintiff tendered back to Kinchen the contract in suit and further offered to do such equity as the court might require as a predicate for the relief sought. A trial of the case resulted in a judgment in favor of plaintiff Austin against Kinchen for a rescission of the trade between them, but denying plaintiff any recovery against defendant Blakney; and Kinchen has appealed. Defendant Kinchen requested a peremptory instruction in his favor which was refused. He then requested the submission of 16 special issues, which were by the court given. The court also submitted to the jury quested by plaintiff, the general charge following the special issues, and reading: "In addition to the above findings, will you please find a general verdict for either the the plaintiff, the form of your verdict will be, plaintiff, or defendant. If your verdict is for 'We, the jury, find for the plaintiff.' If your verdict be for the defendant, the form of your verdict will be, 'We, the jury, find for the defendant.'" The jury made findings on the entire 34 special issues, and also found a general verdict in favor of plaintiff. The record fails to indicate whether the judgment was predicated upon the general verdict, or upon the findings upon special issues. It is likely, however, that it was based upon the special findings, since from a general verdict in favor of plaintiff it could not be determined whether the jury sustained the first count in plaintiff's petition against Blakney for the recovery of the land free of incumbrance upon payment to him of $572, or the second count against Kinchen alone for a rescission of the trade with him. Nor has appellant presented any assignment to the general instruction which gave the jury no legal guide for a determination of the respective rights of the parties but made the jury the exclusive judges of the law, as well as of the facts. But appellant has assigned error to the action of the court in refusing his request for a peremptory instruction in his favor. We seriously question the sufficiency of the petition to support the judgment for rescis sion, a question raised by another assignment presented by appellant; but a determination of that question is unnecessary in view of the fact that the testimony of plaintiff himself upon that issue negatives any right to that relief. Plaintiff testified as follows, and no other testimony was introduced having a contrary meaning: "Mr. Kinchen told me that when as much as one-fourth of the principal sum was paid Blakney would execute a general warranty deed to said premises and convey the same to Whitley, or to whom he should direct, clear of all liens and incumbrances, and that the bottom clause would control the top, and there was no doubt the deed would have to be made according to that clause. Said he would defend it, being a lawyer, and get the deed for me, when I completed that one-fourth of the payments." He further testified that before making the trade with Kinchen he first inspected the property in controversy, and then went to Kinchen's office and had a talk with him, and in that conversation Kinchen"told me that he had no deed to the property, but that he had this contract and could get a deed on it. Q. He did tell you he did not have any deed to this property? A. He certainly did. He said he had this contract and showed it to me. I knew the contract was made to Whitley by Blakney. I took the contract and read it. I knew from the contract that when Blakney sold the property to Mr. Whitley the contract called for $3,250. I knew the contract read for $3,250, and I knew there had only been a few from the back of it. * payments on the contract, it was plain to see * * Of course I in when I took it. Mr. Kinchen did not tell me construction of the contract between Blakthat there was anything else pertaining to the ney and Whitley, plaintiff made the trade contract except just what was written in it. He with Kinchen. The facts show that plaintiff did not say there were any other conditions the legal effect of the written contract between Blakney and Whitley, Kinchen was not acting, nor pretending to act, as attorney for Austin. Under those facts, it is clear that plaintiff showed no right to rescind the contract with Kinchen, and the court erred in refusing Kinchen's request for an instructed verdict in his favor. Hawkins v. Wells, 17 Tex. Civ. App. 360, 43 S. W. 816, and authorities there cited. or understandings between Mr. Blakney and and Kinchen were dealing at arm's length; Mr. Whitley, except what was written in the that Kinchen concealed nothing from Austin; contract, but in his opinion the bottom clause and that, in giving his opinion relative to would control the top, but said he was in the dark on it, that it was not real clear, but he believed it. He said it was a written contract between the two men. He did not tell me anything outside of the contract. He did not try to withhold the contract from me, but he read it to me and then gave it to me and told me to take it to my own lawyer and let them read it; that he was in the dark and he could not say; it was a little bit mixed up and might mean one thing and might mean another. But he told me positively that he could get me a deed when I paid one-fourth, and independent of that I did take it to other lawyers. He did not go with me, nor suggest what lawyer for me to go to. He told me to go to some lawyer of my own choice, and I went to two different firms. * * Mr. Kinchen went with me to see my property, and he said he would turn over the contract for my place and $100, and he told me to take the contract to some lawyer of my own choice and have it passed on, and not take his word for it, and insisted that I take it to some other lawyer and have it construed, and I went to see Charles Mays first, of the firm of Mays & Accordingly, the judgment in favor of plaintiff against Kinchen is reversed, and judgment is here rendered that plaintiff take nothing of defendant Kinchen. The judgment denying plaintiff any relief against Blakney is undisturbed. Mays. They are lawyers, and after that I went FIRE ASS'N OF PHILADELPHIA v. RICHto see Judge McLain, of the firm of McLain, Scott, McLain & Bradley, and Judge McLain looked the contract over and said no one could * ARDS et al. (No. 8224.) (Court of Civil Appeals of Texas. Ft. Worth. June 26, 1915.) 533-FIRE INSURANCE-AC CRUAL OF LIABILITY. Under Vernon's Sayles' Ann. Civ. St. 1914, art. 4874, providing that a fire insurance policy, in case of a total loss of the property insured, shall be considered a liquidated demand against the company for the full amount thereof, such a liability accrues immediately after the occurrence of the fire, regardless of stipulations in the policy for notice and proof of loss. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1320; Dec. Dig. 533.] 2. INSURANCE 539-FIRE INSURANCE-LIMITATIONS AS TO NOTICE OF Loss. lose except Mr. Blakney, the one who first sold Stipulations in a fire insurance policy that proof of loss must be furnished to the company Vernon's Sayles' Ann. Civ. St. 1914, art. 5714, within 90 days after the fire were void under providing that no stipulation in any contract requiring notice to be given for any claim for damages shall be valid unless reasonable, and any such stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. 539.] 3. INSURANCE LIMITATIONS. 622-ACTION ON POLICY A provision in a fire insurance policy that suit thereon should not be sustained unless commenced before the expiration of two years from the accrual of the cause of action was void under Vernon's Sayles' Ann. Civ. St. 1914, art. 5713, providing that no agreement limiting the time to sue to a shorter period than 2 years shall be valid. Thus it clearly appears that the statement made by Kinchen, in effect, that Blakney could be compelled to execute to plaintiff a deed to the property whenever as much as one-fourth of the purchase price which Whitley had agreed to pay had been paid, was not a statement of fact, but the expression of opinion on a question of law, and was so understood by Austin. Furthermore, it is clear from the testimony quoted that, at all events, plaintiff did not rely upon Kinchen's opinion on that question alone, but consulted other attorneys in compliance with the suggestion of Kinchen so to do; and that after attorneys of his own selection inferentially, at least, had expressed the same opinion In an action on a fire policy, wherein it given by Kinchen relative to the proper legal was contended that a settlement was obtained Cent. Dig. §§ 1540, 1544-1550; Dec. Dig. 4. INSURANCE 665-ACTION ON POLICY- by duress, evidence held sufficient to sustain the | reason of said loss under said policy, and by plea thereof. said payment the policies are canceled in full [Ed. Note. For other cases, see Insurance, for the above amount, leaving no insurance Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. thereunder whatever. Assured did this day sur665.] render the above numbered policies to the inthis draft shall be turned over to R. B. Spencer surance company. Assured further agrees that & Co." 5. TRIAL 296-ACTION ON FIRE POLICY INSTRUCTION-CURE. In an action on a fire insurance policy, wherein a contract of settlement was imposed as defense, an instruction ignoring such defense was erroneous, notwithstanding that other instructions recognizing the contract of settlement were also given, since it was impossible to determine which of the conflicting instructions were followed by the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 705-713, 715, 716, 718; Dec. Dig. 296.] Appeal from Stonewall County Court; S. Tillotson, Judge. At the same time L. F. Richards executed and delivered to Bucklew a receipt acknowledging the payment to him of said $50 by the Fire Association and containing substantially the same stipulation above quoted from the draft. It seems that the draft was never collected by the payees. This suit was instituted to recover the amount stipulated in R.L. F. Richards and wife, Mrs. M. A. Richthe policy; the plaintiffs in the case being ards, and R. B. Spencer, H. S. Abott, and J. B. Lipscomb, composing the partnership firm of R. B. Spencer & Co., and the defendant being the Fire Association named. Action by L. F. Richards and others against the Fire Association of Philadelphia. Judgment for plaintiffs, and defendant appeals. Reversed and remanded. Crane & Crane, of Dallas, for appellant. Ernest Herring and J. M. Carter, both of Aspermont, for appellees. ards to procure the indictment and conviction of his wife, Mrs. M. A. Richards, for burning the house, procured the contract of In the petition the execution and delivery of the policy and the total destruction of the house by fire were alleged. It was further alleged that at the time of the issuance of the policy, and at the time of the fire, the house was the homestead of L. F. Richards and DUNKLIN, J. The Fire Association of wife, who were indebted to the firm of R. Philadelphia issued an insurance policy upon B. Spencer & Co. in the sum of $120, evidenca house owned by L. F. Richards and wife, ed by their eight certain promissory notes insuring the same against loss or damage by in the sum of $15 each, all dated December fire for a term of one year, beginning No 1, 1909, which were given for material used vember 10, 1911, and ending November 10, in building said house, which said notes were 1912. The premium paid by L. F. Richards secured by a furnisher's lien upon the house, was $3.87, and the amount of insurance was fixed in accordance with the statutory provi$300. The policy also contained a provision sions relating thereto. It was further allegthat any loss or damage sustained and proved that Bucklew, defendant's adjuster, withen to be due under the policy should be pay-out the knowledge or consent of R. B. Spenable to R. B. Spencer & Co. as their interest cer & Co., and by threats made to L. F. Richmight appear, subject to the terms and conditions of the policy. The house insured was a one-story frame building occupied by L. F. Richards and wife as a dwelling and situated settlement from Richards referred to above. in the town of Aspermont, Tex. The house It was alleged that L. F. Richards did not was wholly destroyed by fire on November willingly and freely enter into said contract 28, 1911. On December 20, 1911, Sam Buck- of settlement, but that he was intimidated lew, adjuster for the insurance company, and coerced into agreeing to such settlement reached an agreement with L. F. Richards for the settlement of the claim theretofore by the threats so made by Bucklew to prosemade by him for the loss of the house, and cute and convict Mrs. M. A. Richards for also for the loss of its contents, which were those facts the contract of settlement was burning said house, and that by reason of covered by another insurance policy for the those facts the contract of settlement was sum of $250, not litigated in this suit. By invalid and of no force or effect. It was fursum of $250, not litigated in this suit. By ther alleged that plaintiffs had refused to the terms of that agreement the adjuster, ther alleged that plaintiffs had refused to as the agent and representative of the in- accept the said draft in satisfaction of the surance company, agreed to pay Richards, said policy. It was further alleged that, as who agreed to accept, the sum of $50 in full the house was totally destroyed, the policy became a liquidated demand against the desatisfaction of said policies. In pursuance of that agreement Bucklew executed and de- the loss was duly given by the plaintiff to fendant for its full amount; that notice of livered to Richards a draft, drawn upon the defendant, together with proper proof Trezevent & Cochran, general agents of the insurance company at Dallas, for the sum of $50, payable to the order of L. F. Richards and R. B. Spencer & Co.; the draft containing the following stipulation: "It is agreed that the indorsement and collection of this draft by the payee or payees shall constitute a receipt in full for all sums due by thereof. In its answer the defendant denied that the settlement with L. F. Richards was prothe settlement with L. F. Richards was procured by fraud, duress, or threats of any character, and alleged that the same was made willingly and freely on the part of L. F. Richards. Defendant further alleged that shall ever be valid, unless such stipulation is reatime within which such notice shall be given at sonable; and any such stipulation fixing the a less period than 90 days shall be void. Mrs. M. A. Richards was equally interested Article 5713 of the Statutes reads: with her husband, L. F. Richards, in the "It shall be unlawful for any person, firm, corproperty insured, which was community prop- poration, association or combination of whatsoerty of the two, and likewise equally interest-ever kind to enter into any stipulation, contract, or agreement, by reason whereof the time in ed in said policy as a cobeneficiary with her which to sue thereon is limited to a shorter pehusband therein; that the fire which destroy-riod than two years. And no stipulation, coned the building was due to the act or pro- tract, or agreement for any such shorter limitacurement of Mrs. M. A. Richards, who set fire tion in which to sue shall ever be valid in this state." thereto, or caused the same to be destroyed Article 5714 reads, in part, as follows: by fire, for the purpose of collecting the in"No stipulation in any contract requiring nosurance upon the property, and hence the de- tice to be given of any claim for damages as a fendant was not liable thereon. It was fur-condition precedent to the right to sue thereon ther alleged that, while the policy contained provisions requiring plaintiffs to furnish to the defendant within 90 days after the fire proof of said loss, and that the policy would not be due and payable until 60 days after the furnishing of said proof of loss, that said provisions relative to the due date of payment are null and void by virtue of the statutes of Texas and the decisions thereunder, to the effect that, in the event of the total destruction of a building by fire, the policy of fire insurance thereon shall be considered a liquidated demand upon which suit may be instituted immediately after the fire. A further stipulation contained in the policy was also specially pleaded, reading: In the case of Taber v. Western Union Tel. Co., 104 Tex. 272, 137 S. W. 106, 34 L. R. A. (N. S.) 185, the Telegraph Company, which was sued for damages for negligent delay in the transmission and delivery of a message, pleaded in bar of the action the failure of the sender of the message to comply with the following stipulation contained in the contract: "All messages taken by this company are subject to the following terms: The company will not be liable for damages or statutory penalties "No suit or action on this policy for the re-writing within 90 days after the message is filed in any case where the claim is not presented in covery of any claim shall be sustainable in any with the company for transmission." court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 2 years next after the fire." Defendant alleged that the suit had been instituted more than 2 years after the fire, and pleaded the stipulation last mentioned as a bar to any recovery. A trial before a jury resulted in a verdict and judgment in favor of plaintiffs for the sum of $300, with interest from date of suit, from which judgment the defendant has prosecuted this appeal. As noted already, the fire which destroyed the house occurred on November 28, 1911. This suit was instituted December 29, 1913, more than 2 years after the date of the fire, and by different assignments of error appellant insists that the provision in the policy last quoted, to the effect that no suit or action on the policy for the recovery of any claim shall be sustainable in any court of law or equity, not commenced within 2 years next after the fire, was a complete bar to any recovery, and that the court erred in refusing a peremptory instruction in its favor as requested; also in refusing to sustain defendant's special exceptions to the petition, which exceptions presented the same defense, and in submitting any instruction to the jury which would permit a verdict in plaintiff's favor upon any theory. In that case our Supreme Court, referring to article 5714 of the Statutes, said: "The statute is plain in its terms that 'any such stipulation fixing the time within which such notice shall be given at a less period than 90 days shall be void. The provision in the contract requiring that notice shall be given within 90 days after the filing of the message we construe to mean that such notice shall be given before the expiration of 90 days after the filing of the message, and hence is void. The statute gives a claimant 90 full days as the shortest time to which he may be prescribed by contract in presenting his claim for damages, and any abridgment of that right annuls the contract. The New York Court of Appeals, in Merchants' & Traders' Bank v. Mayor, 97 N. Y. 361, in construing a city ordinance which provides for notice to be given at any time within 10 days after the completion' of certain work, held such ordinance to mean that notice must be given before the expiration of 10 days after the completion of the work. It is our opinion that, even if sions of the statute by requiring the notice to the stipulation was not repugnant to the provibe given 'within 90 days,' the same is nevertheless void by virtue of the provision arbitrarily fixing the period from which the 90 days shall be computed at the time of filing the message, as contradistinguished from the time the cause of action arose as provided for in the statute as we construe its meaning." T. & P. Ry. Co. v. Langbehn, 150 S. W. 1188, Smith v. I. & G. N. Ry., 138 S. W. 1074, and St. L. & S. W. Ry. v. Brass, 133 S. W. 1075, are to the same effect. In Continental Insurance Co. v. Chase, 33 Article 4874, 3 Vernon's Sayles' Tex. Civ. S. W. 602, it was held that under the article Stat., reads: "A fire insurance policy, in case of a total loss by fire of property insured, shall be held and considered to be a liquidated demand against the company for the full amount of such policy: Provided, that the provisions of this article shall of the statute now numbered 4874, providing that a fire insurance policy upon property other than personal property shall be considered a liquidated demand whenever the property is wholly destroyed by fire, no ef requiring the insured to furnish to the company proof of such loss within 60 days after fire, and further stipulating that no suit should be instituted upon the policy until such proof had been so furnished. In that connection the court said: "If the amount due is fixed and settled, we cannot see how it can be open for adjustment, proof, or anything else but payment. The holder of the policy in such cases has nothing to do but to present his policy for payment, as he would a promissory note. It is due when the loss occurs, regardless of the stipulations in the contract to the effect that it shall be due so many days after proof of loss, for this statute has done away with proof of loss for any purpose whatever." To the same effect are the following decisions: Georgia Home Ins. Co. v. Leaverton. 33 S. W. 579; Hamburg-Bremen Ins. Co. v. Ruddell, 37 Tex. Civ. App. 30, 82 S. W. 826; Fire Association of Philadelphia v. Strayhorn, 165 S. W. 901. [1-3] Under those authorities we hold that if appellant was liable upon the policy in suit the amount of that liability was due immediately after the fire occurred, and that the stipulation contained in the policy for notice and proof of loss to be made as a prerequisite to the right to sue upon the policy was void, as alleged by appellant in its answer. In Tex. & Pac. Ry. Co. v. Langbehn, 158 S. W. 244, a stipulation in the bill of lading for goods shipped, and for the loss of which the suit was instituted, was invoked by the railway company as a bar to the action. That stipulation read: "In no event shall any suit be sustained, unless the same shall be commenced before the expiration of 2 years from the date the cause of action accrued." causes of action to be instituted "within" 1, 2, 3, 4, 5, and 10 "years," respectively. And while we have concluded to follow the opinion of the Court of Appeals for the First District in the Langbehn Case, for the reasons therein stated, yet, if the question were one of first impression, the majority at least would be inclined to hold that article 5713 should be construed as prohibiting a stipulation in any contract fixing a period of limitation for suit thereon to a period shorter than is fixed by the statute of limitation of 2 years, rather than as adding 1 day to that period. The jury were instructed, in effect, that the contract of settlement was valid and binding upon the plaintiffs, unless the same was obtained through duress, as pleaded by them. [4] Appellant earnestly insists that the evidence was insufficient to sustain the plea that the contract of settlement was procured through duress exerted upon Richards. Testimony at length is cited strongly tending to negative the truth of such finding by the jury. According to According to Bucklew's testimony, which was corroborated by other evidence, Bucklew procured the affidavits from several of the citizens residing at Aspermont relative to the origin of the fire. In a conversation with L. F. Richards, just before the settlement was agreed to, he submitted those affidavits to Richards, and at the time stated to him in substance that he believed Mrs. Richards set fire to the house, and that that belief was based upon the information contained in the affidavits. Bucklew further testified, in effect, that Richards took the affiArticle 5713 of the Statutes quoted above davits with him and repaired to the office of was invoked in reply to that contention. In his attorney for advice relative to the propthat case the Court of Appeals at Galveston osition already made by Bucklew to pay the held that the stipulation in the bill of lading sum of $50 in full settlement of the two polwas in violation of that statute, and there-icies of insurance, one being upon the confore invalid. The conclusion so reached was tents of the house, and the other being the predicated upon the decision of our Supreme policy in controversy in this suit upon the Court in Taber v. Western Union, supra. building; that, after consulting with his atIn other words, it was held that if a provi- torney, Richards freely and Richards freely and voluntarily sion in a contract requiring notice of dam- agreed to the settlement; and that Bucklew ages to be given within 90 days was in viola- at no time made any of the threats charged tion of article 5714, as decided in the Taber in plaintiffs' petition. But opposed to that Case, then the provision in the bill of lading, testimony was the testimony of Richards requiring suit to be instituted before the ex- himself, substantially that such threats were piration of 2 years from the date the cause made by Bucklew, and that he was thereby of action accrued, fixed a period of limita- coerced and intimidated to accept the propotion for the institution of the suit shorter sition of settlement made by Bucklew. He than 2 years and was therefore in violation further testified that after Bucklew submitof article 5713 of the statute. In that case ted the proposition, and made the threats to the majority of the court criticized the de- send his wife to the penitentiary unless the cision in the Taber Case, but felt constrained proposition was accepted, he (Richards) did to follow it, and to hold that the principle go out to consult his lawyer, who returned was decisive of the question then determined. with him to Bucklew; that the attorney then The provision in the policy is substantially requested of Bucklew to show him the affithe same as the one noted in the bill of lad- davits upon which he based his opinion that ing in the Langbehn Case last referred to. Mrs. Richards had burned the house, but Article 5713 is one of the articles of title 87 that this request was declined by Bucklew; upon the subject of limitation of actions, em- that thereupon the attorney declined to adbracing all our statutes of limitation, all of vise Richards whether or not to accept the which statutes require suits upon different proposition, by reason of his ignorance of |