On Motion for Rehearing.
The briefs and arguments of. able counsel in support of appellant Security National Company’s motion for rehearing have all been carefully considered, but this court is constrained to adhere to its former disposition of the cause as having been ■ correct. Perhaps it would' have been better, however, had it then written further to this extent on appellant’s reiterated contention now to the effect that any recovery against it on its policy was waived through the failure of the parties to furnish it proof of loss from the fire thereunder within ninety days after it occurred. The undisputed facts on that feature, in so far as material, were these:
No five days’ notice of intention to cancel the policy, as provided in the face thereof, was given either party in advance of the letter appellant wrote in March to its agents at Goliad, which it contends accomplished the cancellation claimed; further, the assured Farrington was never at any time given notice, nor did he acquire knowledge, of the fact that such policy ever existed, until his attorneys discovered that fact in November of 1931 following the occurrence of the fire on April 1st of 1931, whereupon, in response to advice to it from them that they had heard about its having issued its policy, the company wrote the attorneys denying all liability under the policy in suit upon the specific ground that it had been canceled prior to the fire. Inasmuch as the building and its contents covered by this policy constituted fixtures upon the property and were totally destroyed, nothing whatever of any value remaining, under R. S. article 4929, appellants’ policy therefore became a liquidated demand against it as appertaining to real property, and no proof of loss was necessary, the different rule insisted upon by the appellant not being applicable in the circumstances. Article 4929, Vernon’s Annotated Civil Statutes; *340Export Ins. Co. v. Axe (Tex. Com. App.) 58 S.W.(2d) 39; Security Ins. Co. v. Vines (Tex. Civ. App.) 48 S.W.(2d) 1017.
Further discussion' being deemed unnecessary, the motion will be overruled.
Overruled.
PLEASANTS, O. J., dissents.