a complete record of business transactions,, Insurance Co. v. Insurance Co., 144 N. Y. and that appellee was not the sole and un- 195, 39 N. E. 78, 26 L. R. A. 591, 43 Am. conditional owner of the property insured, St. Rep. 749; Bacot v. Insurance Co., 96 in that he had sold a two-thirds interest Miss. 223, 50 South. 732, Ann. Cas. 1912B, therein prior to said fire, and that a change 262; Robinson v. Insurance Co. (Ky.) 53 had thereby taken place in the interest, title, S. W. 660. and possession of the subject of insurance, This was a complete, and not an execuin violation of the terms of the policy. A tory, contract of sale as contended by appeljury trial resulted in a verdict and judg-lee, nor is it material, as he contends, that ment in behalf of appellee in the sum of he retained a lien to secure part of the $829.60, from which this appeal is prose-purchase money on said property. Assurance cuted. Co. v. Bank, supra. The legal title, by reason of the sale, immediately vested in his partners, and they could have enforced the contract as against him. This being true, there was a complete change in the interest, title, and possession of the property. Nor is it material that subsequent to the fire he had a settlement with his partners, by which he paid back to them part of the purchase money received, because after the fire he could do nothing that would defeat appellant's right to insist on a forfeiture on account of such breach of the contract by him. Hence it must be held to have avoided the same under the provisions thereof above quoted.

[1] Appellant requested, and the court refused to give, a peremptory instruction to find in its favor, and this refusal is made the basis of several assignments of error, among them the fifth, because, among other reasons, the undisputed evidence showed that a change had taken place in the interest, title, and possession of the subject-matter of insurance, in that on December 9, 1912, appellee sold to G. H. Peters and R. S. Martin an equal partnership interest with him in the goods covered by the contract declared upon, accepting a part of the consideration of such sale, and placing one of said parties in charge of the Waco stock, the goods here involved.

The law seems to be well settled that, under a policy of fire insurance providing for the avoidance thereof in case of change of interest, title, or possession in the subject of insurance, that no recovery can be had thereon in the event of loss, where such change has taken place. The policy contained a clause, in substance, to the effect that, unless otherwise provided by agreement indorsed thereon, it should become void in the event of any change, other than by death of the insured, in the interest, title, or possession of the subject-matter of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured or other'wise. The uncontradicted evidence showed that prior to the fire appellee had sold a two-third interest in his business to G. H. Peters and R. S. Martin, accepting a part of the consideration therefor, and placing the former in charge of his Waco house, of which appellant had no notice or knowledge. We think this sale was in direct violation of the contract of insurance, and defeats appellee's right to recover thereunder. See Insurance Co. v. Ransom, 61 S. W. 144; Assurance Co. v. Bank, 18 Tex. Civ. App. 721, 45 S. W. 737; Foundry Co. v. Assurance Co., 135 Mich. 467, 98 N. W. 9, 3 Ann. Cas. 707; Drennen v. Assurance Co. (C. C.) 20 Fed. 657; Insurance Co. v. Riker, 10 Mich. 279; Malley v. Insurance Co., 51 Conn. 222; Osborn v. Insurance Co., 151 Ill. App. 126; Card v. Insurance Co., 4 Mo. App. 424; Royal Ins. Co. v. Martin, 192 U. S. 149, 24 Sup. Ct. 247, 48 L. Ed. 385; Widincamp v. Insurance Co., 4 Ga. App. 759, 62 S. E. 478; Insurance

[2] It is also urged by the first assignment that, where the contract of insurance stipulates that a complete itemized inventory shall be taken within 30 days after the issuance thereof, unless one had been taken within 12 calendar months prior thereto, the policy becomes void, and no subsequent loss can be recovered thereunder. The policy contains the following provisions:

"First. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and within twelve months of the last preceding inventory, if such has been taken. Unless such inventory has been taken within twelve calendar months prior to the date of this policy, and together with a set of books showing a complete record of business transacted since the taking of such inventory, is on hand at the date of this policy, one shall be taken within thirty days after the date of this policy, or, in each and either case, this entire policy shall be null and void."

The policy was issued August 19, 1912, at which time appellee had been in business The first inventory less than 12 months.

was taken in November, 1912. It is contended, however, on the part of appellee that there was an inventory taken in April before the policy was issued; but this contention is not supported by the record, because the paper that he contends was an inventory merely had incorporated therein the invoice of goods purchased during the months of April, May, and a part of June. This is not such a complete, itemized inventory as the law contemplates. See Fire Ins. Co. v. Adams, 158 S. W. 231; Nat. Union Fire Ins. Co. v. Walker, 156 S. W. 1095; Dorroh v. Insurance Co., 104 Tex. 199, 135 S. W. 1165, and cases cited; Id., 126 S. W. 616, and cases cited; German Ins. Co. v. Bevill, 126

LANE et al. v. JONES. (No. 5310.) (Court of Civil Appeals of Texas. San Antonio. May 13, 1914.)

MATTERS

viding that on appeals relating to temporary In view of Rev. St. 1911, art. 4645, proinjunctions the Court of Appeals shall hear and determine the matter on the petition, answer, application for temporary injunction in chamand affidavits, the lower court, in hearing an bers, cannot pass upon exceptions to the petition filed by the defendants, and, where no pleadings were filed, aside from the exceptions, the only question is whether the petition is sufficient to authorize the injunction.

[Ed. Note. For other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. § 144.*] 2. INJUNCTION (§ 122*)-PETITION-VERIFICATION-SUFFICIENCY.

Under Rev. St. 1911, art. 4649, requiring a petition for an injunction to be verified by the affidavit of the party, an affidavit by plaintiff's the best of his knowledge and belief, is insuffiattorney, not upon his own knowledge, but to cient, since it cannot be determined what facts are stated upon knowledge and what upon belief, and no prosecution for perjury could be predicated thereon if the affidavit were false.

W. 458; Royal Ins. Co. v. Kline Bros. & Co., 198 Fed. 469, 117 C. C. A. 228; Southern Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Reynolds v. German-Amer. Ins. Co., 107 Md. 110, 68 1. INJUNCTION ( 144*)-TEMPORARY INJUNC Atl. 262, 15 L. R. A. (N. S.) 345; Mercantile TION HEARING IN CHAMBERS Co. v. Insurance Co., 114 La. 146, 38 South. CONSIDERED. 87, 3 Ann. Cas. 821; Day v. Home Ins. Co. (Ala.) 58 South. 550, 40 L. R. A. (N. S.) 652; Phenix Ins. Co. v. Dorsey, 102 Miss. 81, 58 South. 778. Discussing this subject, the Court of Civil Appeals for the Sixth District, through Mr. Justice Levy, in the case of Fire Ins. Co. v. Adams, supra, said: "Defendant in error relies in this case on invoices of the goods by which they were purchased as being equivalent to an inventory of the stock, and as constituting substantial compliance with the requirement of an inventory. The parties having stipulated, as they had the right to do, for a record of the class of an 'inventory' which the assured will take,' it is not believed that the courts would be justified in so changing the language of the parties as to compel the insurance company to accept a record of a different class or a substitute for that which it had contracted for. And there is a practical difference between submitting an inventory taken of stock in the store and offering an invoice of goods by which they were purchased. For invoices to have any verity as evidence of goods received into a stock of merchandise, it would become necessary to show outside the invoice that the goods were checked with the invoice at the time they were received into the store, and were found to be correct in quantity and soundness, and that the merchandise represented by the invoice was actually received into the house and added to the stock before the close of the period for which the invoices are to be used as an inventory, for it is commonly known that invoices most frequently precede shipments, and sometimes the goods are only on approval. It must be assumed that the parties contemplated there was a practical and substantial difference between an inventory and commercial invoices by stipulating, as they did, for an inventory to be taken by the assured. It has been decided that the furnishing of invoices by which goods were purchased was not a compliance with the requirement of taking an inventory by the assured within 30 days after the date of the policy"-citing numerous cases in support of the text.

We think the record fails to show that the appellee complied with this clause of the contract, in that he failed to keep and preserve the inventories required thereby, and that he did not even substantially comply with said clause, because the invoices were not inventories in the sense of this requirement. See Dorroh v. Insurance Co., supra.

We therefore sustain the first and fifth assignments of error, urging that the court erred in failing to give a peremptory instruction in behalf of appellant. The case having been fully developed, it becomes our duty to reverse the judgment of the court below, and here render the same in behalf of appellant, which is accordingly done. Reversed and rendered.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 262-268; Dec. Dig. § 122.*] Appeal from District Court, Kinney County; W. C. Douglas, Judge.

Suit for injunction by John Jones against Frank Lane and others. From judgment granting temporary injunction prayed for, defendants appeal. Judgment reversed, temporary injunction dissolved, and the cause remanded.

Frank Lane, of Brackettville, and John J. Foster, of Del Rio, for appellants. Ernest A. Jones, of Brackettville. and Martin & Martin, of Uvalde, for appellee.

CARL, J. Appellee, John Jones, brought suit for injunction against appellants, Frank Lane, county attorney, Joseph Veltmann, county judge, and Hans Peterson, A. M. Slator, and L. N. Lewis, county commissioners of Kinney county, also against H. E. Veltmann, county clerk of said county. It is alleged that Albert Schwander is also a member of the commissioners' court, but of him no complaint is made.

The first amended petition charges that on February 11, 1914, the commissioners' court made an order whereby Frank Lane, the county attorney, was to be allowed $100 per month for his services, beginning February 1, 1914, and to run until the further order of the court. It was alleged in the original petition that this employment was illegal, and an injunction was prayed for, restraining H. E. Veltmann, the county clerk, from issuing and delivering any warrant or scrip on the treasurer therefor, and restraining Frank Lane, as county attorney, from demanding or receiving or receipting for any

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

warrant or scrip therefor. On February 24, 1914, the court granted this injunction, which was duly served, and appointed Charles Kartes, district clerk, pro tem. to serve in this case on account of the disqualification of H. E. Veltmann.

The amended petition further charges that the object of this suit "was and is to save to the plaintiff and many other taxpayers of Kinney county, Texas, said sum of $1,200.00 public funds of Kinney county, which was illegally, unlawfully, and wrongfully about to be misapplied and appropriated to his own use and benefit by the defendant Frank Lane, county attorney, as aforesaid by virtue of the order and judgment of said commissioners' court aforesaid." And that defendants then entered into a scheme to evade and avoid the injunction of the court and "yet still, with a show of legality, break into the county treasury of Kinney county, and take therefrom the sum of $1,200.00 per annum or $100.00 per month, beginning March, 1914, for the use and benefit of defendant county attorney, Frank Lane, by reason of the following order, duly recorded in the minutes of the Commissioners' Court, vol. 4, pages 462 and 463, and judgment of said commissioners' court, which was duly prepared in advance by defendant county attorney, Frank Lane, or under his directions and employment, and requested to be by said commissioners' court passed, which order and judgment is in words and figures as follows, to wit: [Here follows a letter from the county attorney, Frank Lane, to the commissioners' court, in which he asks the court to set aside the former order of February 11, 1914, which request was by the court granted on March 9, 1914, and the said order was set aside and held for naught.]" But the same order, in which that was done, proceeds:

Lane that should he be instrumental in selling said bonds or finding a buyer therefor, that the shall be full compensation for his services, and said sum of twelve hundred ($1,200.00) dollars that no compensation shall be expected by or paid to the said Frank Lane for such services: that the said county judge is hereby authorized and empowered to enter into a contract with the said Frank Lane embodying the terms of the above order securing his services as special counsel in all civil matters in connection with said bond issue and other legal matters not contemplated or covered by the said Frank Lane's official duties as county attorney of Kinney county."

It is alleged that this was intended to be a salary; that Lane was the duly qualified and acting county attorney; and that the advice and services rendered under said contract would be the same that he is required by the Constitution to render to the county; and that the judgment of the commissioners' court, of date March 9, 1914, is a subterfuge, and an attempt to evade the injunction of the court. It is further alleged that since February 28, 1910, the said Frank Lane has been drawing a salary as county attorney under the guise of legal services rendered and advice given the commissioners' court, all of which, it is claimed, is in violation of the Constitution and laws of Texas; and that the "good roads bonds" referred to in the order of March 9, 1914, had already been prepared by the court, or, under its direction, submitted to the Attorney General of Texas, approved by him, and H. E. Veltmann, the regular clerk of the commissioners' court, had been so notified; that all that remained to be done was for the county judge and county clerk to sign, and for the Attorney General to put his certificate thereon, and have the comptroller register same.

The petition also charges that the commissioners' court on December 9, 1913, paid to their codefendant Frank Lane, out of the public funds of the county, the sum of $100 for traveling expenses in visiting the Attorney General at Austin and getting the form of bond, etc., to which he would give his certificate of approval. This, as well as the $50 salary, it is claimed, Lane had been permitted to take out of the funds of Kinney county unlawfully.

"It is hereby ordered by the commissioners' court at a regular term in regular session on this, the 9th day of March, 1914, at 2:10 o'clock p. m., that the county judge of Kinney county be authorized to secure the services of Frank Lane, attorney at law, to assist said county judge and commissioners' court in properly preparing the issue of the road bonds voted by a majority of the qualified property tax-paying voters of Kinney county on the 14th day of The petition further charges that this conNovember, 1913; to advise said county judge and commissioners' court in the proper prepara- tract is unlawful, and that the services tion and issuing of said road bonds, and other therein provided for the county attorney is legal matters in connection therewith; to sell required to render by virtue of his office; or assist in selling said issue of bonds at the that there is no way to pay said salary, exbest price obtainable therefor; to do and perform such other services as shall be required of cept by an unlawful levy of taxes "or to him in advising said commissioners' court and raise plaintiff's and all other taxpayers' taxcounty judge with reference to said bond issue, es to that extent, as hereinbefore alleged"; and in reference to all other matters not contemplated or covered by the said Frank Lane's and, in the alternative, it is alleged that, official duties as county attorney of Kinney should said contract be held legal, the salary county. The said employment by the county is exorbitant and unreasonable. judge and commissioners' court to be for a period of one year from date of this order. Said Frank Lane to receive as such compensation for said services to be performed, as above set Appellants, on a hearing, filed exceptions forth, the sum of twelve hundred ($1,200.00) to the petition substantially: (1) Because dollars, payable one hundred $100.00) dollars per month for a period of 12 months. It being the petition is insufficient as

Prayer was made for a temporary restraining order, as before.

a basis for

an injunction will not be granted. Smith v. Allen, 28 Tex. 497; Johnson v. Daniel, 25 Tex. Civ. App. 587, 63 S. W. 1032.

vided by law; (2) because the allegations | S. W. 375; Bule v. Cunningham, 29 S. W. therein contained set up no such equitable 801. And, where the verification is defective, cause of action as would entitle him to the relief prayed for; (3) because the same is insufficient to invoke the equitable jurisdiction of the court, and the allegations therein contained are insufficient as a basis for an injunction.

The attorney, in this case, makes oath "that the allegations in the said petition are true according to his knowledge and belief."

No answer, other than these demurrers, It does not inform us what part he knows was filed.

The court granted the temporary injunction prayed for, and appellants waived the issuance and service of the writs.

Article 4649 of the Revised Statutes requires the petition to be verified by the applicant. The affidavit reads as follows: "The State of Texas, County of Kinney: "Before me, the undersigned authority in and for said county and state, on this day personally appeared Ernest A. Jones, attorney of record for John Jones, plaintiff in the above-numbered cause, who, being by me first duly sworn, says that John Jones is plaintiff in the above and foregoing first amended petition, and that the allegations in said petition are true according to his knowledge and belief. Ernest A. Jones, Attorney for John Jones, Plaintiff.

"Sworn to and subscribed before me this 19th day of March. A. D. 1914. H. A. Longcor, J. P. and Ex Officio Notary Public, Kinney Co.,

Texas. [Seal.]"

El

of his own knowledge and what facts he
swears to on belief. It must be borne in
mind that this is an application for a tem-
porary injunction, which, to some extent,
distinguishes it from a petition for perma-
nent injunction which comes up on final
trial. The allegations must be clear and
certain, and the verification must be in com-
pliance with the statute. It cannot be ascer-
tained from the affidavit what facts are sworn
to on the basis of the attorney's knowledge,
nor those verified from information, nor
the source of that information. The courts
of this state have repeatedly held that such
Rev. Stats. 1911,
an affidavit is insufficient.
art. 4649; Pullen v. Baker, 41 Tex. 420; Gra-
ham v. McCarty, 69 Tex. 324, 7 S. W. 342;
Ry. Co. v. Harkey, 39 Tex. Civ. App. 523, 88
S. W. 506; Lee v. Broocks, 54 Tex. Civ. App.
220, 118 S. W. 164; Clarey v. Hurst, 136 S.
W. 840; Spinks v. Mathews, 80 Tex. 375, 15
S. W. 1101; Smith v. Banks, 152 S. W. 449;
Ry. Co. v. Brown, 75 S. W. 807; Moss v.
Whitson, 130 S. W. 1034.

self of the facts. It is signed by an agent, and the general statement under oath that the allegations are true and correct, to the best of his knowledge and belief,' is too general to constitute a substantial compliance with the law."

And in the Smith v. Banks Case, supra, Mr. Justice Fly has said:

[1] Appellee insists that the court had no power to pass on the special exceptions in chambers, and we think that position is correct. This is a matter for the court to pass upon, and not for the judge in chambers. In the Spinks Case, supra, it is said: The only question that was before the judge in chambers was whether he should grant held that the affidavit should show substantial"In support of pleas of this character it is an injunction upon the pleadings as present-ly that the party making it has knowledge himed. The law provides that matters touching temporary injunctions shall be heard and determined on appeal by the bill or petition and answer thereto. Articles 4644 and 4645, Revised Statutes. And, since no answer was filed in this case, the matter was before the court upon the bill presented. The judge "The test of an affidavit, as laid down by the could not then act upon the exceptions. Commission of Appeals (Whitemore & Co. v. Campo Light Co. v. Water & Light Co., 132 Wilson, 1 Posey, Unrep. Cas. 213), is that the affidavit of the facts sworn to must be so direct S. W. 868; Dearborn v. Phillips, 21 Tex. and unequivocal as that an indictment for per449–451. The matter, then, resolves itself jury would lie, if the oath is falsely made. The into this question: Would the court be au- affidavit in this case will not meet that test, for thorized to grant a temporary injunction up-tain part of the petition was sworn to upon it would be impossible to prove that any cerknowledge, information, or belief, and consequently an indictment for perjury would have nothing upon which it could be predicated with that definiteness required in criminal proceedings. The general rule is that an affidavit on mere information and belief, without supporting affidavits of the informants, is not sufficient"citing some of the cases referred to here, and citing some others. Beach on Inj. par. 136; High on Inj. par. 1569; Ruge v. Fish Co., 2 Fla. 656, 6 South. 489; Moss v. Whitson, 130 S. W. 1034.

on a bill not verified as provided by law, where no answer is filed?

[2] Article 4649 of the Revised Statutes of 1911 reads as follows:

"No writ of injunction shall be granted, unless the applicant therefor shall present his petition to the judge, verified by his affidavit taken before some officer authorized to administer oaths, and containing a plain and intelligible statement of the grounds for such relief."

This affidavit is made by the attorney, and it has often been held that, where the attorney makes it, he must do so upon his own knowledge. An affidavit to the "best of my knowledge and belief" is insufficient. Cates v. Maas, 4 Willson, Civ. Cas. Ct. App. § 161, 14 S. W. 1066; Ewing v. Duncan, 81 Tex. 230, 16 S. W. 1000. The allegations must be def

We therefore conclude that the affidavit was insufficient to form the basis of a tem porary injunction, and the first assignment of error is sustained.

The case will not be further considered, because we will not assume that a different affidavit from this one will be made. The

1. EVIDENCE (§ 273*)-DECLARATIONS-ADMIS- his wife testified that they had considered

JENKINS, J. Appellant brought suit against R. B. Lane on a debt, and levied upon two mules and one mare. Appellee Minnle [2] If the facts are that Lane and his wife J. Lane filed her oath and claimant's bond, treated the animals as the separate property alleging that said animals were her separate of the wife, upon a mistaken view of the law property. The trial of the right of property as to the increase of separate property, this was submitted upon special issues. Appellee would not constitute a gift; such fact would and her husband each testified that the ani- not have estopped the husband from claiming mals in question were the offspring of mares the property as community property. But if that were the separate property of appellee, the husband in fact relinquished his claim