Appellant issued an insurance policy on a storehouse, stock of goods and fixtures belonging to appellee. The policy, which is made a part of appellee’s pleading, contains the following provision: “If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in- the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon, and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of’the said insured as to the time and origin of the fire, the interest of the insured and all others in the property, the cash value of each item thereof and the amount of loss thereon, all incumbrances thereon, all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies *258and changes in the title, nse, occupation, location, possession, or exposures of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire, and shall furnish, if required, verified plans and specifications of any building, fixtures destroyed or damaged,” etc.
“The loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of loss herein required have been received by this company.”
The property was destroyed by fire, and appellee brought this suit to recover on the policy. The only allegation concerning proof of loss is that appellant was “duly notified in writing of the destruction of said property, as aforesaid, and duly furnished with proofs of such loss as said policy required.”
A trial was had before the court without a jury and judgment rendered for the full value of the house, and three-fourths of the value of the personal property.
Appellee testified in part as follows: “Immediately after the fire I notified the company in writing of the loss and destruction of the stock of goods and the building. About three or four days after the notice, J. W. Perry, the agent of the company at Rockdale, and the adjuster, M. Kelley, came down to look over the ground. Shortly after the fire occurred, I made out a written statement or proof of loss, which showed the amount of my inventory on January 1, 1901, and the amount of goods purchased after that date. I also submitted to a sworn written examination as to how the fire occurred.”
He further testified on cross-examination that the only proof of loss he had ever made out and submitted to the defendant was the statement referred to in his direct examination, which'merely contained a statement of the amount of his inventory on January 1, 1901, and the amount of his purchases from that date to the date of the fire, and the amount of his merchandise sales during said time, and that said statement did not contain any itemized statement of his goods, and was not sworn to by him, and did not contain any itemized statement of his purchases, but contained only totals of each amount. He further testified: “The defendant made no objection to the proof of loss I sent them, and did not send the same back to me or at any time object to the same in any manner whatever.”
It is well settled that the provision above set out is a condition precedent, and a recovery "can not be had unless the provisions are complied with or waived. Insurance Co. v. Clancy, 83 Texas, 113. It must also be obvious that the acts done by appellee, as shown by his evidence, fall short of a compliance with this provision in several respects.
He could therefore recover only on the theory that the evidence showed a waiver by appellant of this requirement in the policy. If it had been plead by appellee, it is likely that the evidence would sustain a finding *259of waiver; but the assignments of error raise the question whether a judgment can be rendered on evidence showing a waiver, when the pleadings do not allege a waiver of the condition, but a compliance with it.
In some jurisdictions it seems that an exception has been made in precisely this class of cases, so that under an allegation of compliance with the condition, proof may be made that the condition was waived. McCullough v. Insurance Co., 21 S. W. Rep., 207. In this State, however, the general rule prevails that the proof must correspond to the allegations, and that proof of a waiver can not be made under an allegation that a condition precedent was complied with Insurance Co. v. Brown, 82 Texas, 631; Insurance Co. v. Dyches, 56 Texas, 569.
Other questions presented are not apt to arise upon another trial; but because the evidence failed to show a compliance with the provision concerning proofs of loss, there being no pleading to admit the proof of waiver, the judgment is reversed and the cause remanded.
Reversed and remanded.