American Cent. Ins. Co. v. Ware

• Decision Date: 28 May 1898
• Citation: 46 S.W. 129
• Parties: AMERICAN CENT. INS. CO. v. WARE et al.
• Court: Arkansas Supreme Court

Page 129

46 S.W. 129

AMERICAN CENT. INS. CO. v. WARE et al.

Supreme Court of Arkansas.

May 28, 1898.

Appeal from circuit court, Benton county; Edward S. McDaniel, Judge.

Action by J. H. & W. A. Ware against the American Central Insurance Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Action upon a policy of insurance against loss by fire upon a stock of goods. The policy was issued on the 8th day of April, 1896, and the goods insured were destroyed by fire on the 7th day of May, 1896. The policy contained the following provisions: "Iron-Safe Clause. The assured under this policy agrees to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash and credit (cash sales need not be itemized except by daily totals), and agrees to take an itemized inventory of stock on hand at least once every year, and to keep such books and inventory securely locked at night in a fireproof safe, and at all other times when the store described in this policy is not actually open for business, or in some secure place not exposed to a fire which may damage or destroy the building where said business is carried on; and in case of loss, whether at the time of the fire the store be open for business or not, the assured agrees to produce such books and inventories, and, in the event of failure to produce the same, this policy shall be null and void, and no suit or action at law shall be maintained thereon for any loss or claim. * * * Any fraud or concealment, or any misrepresentation in any statement touching the loss, or any false swearing on the part of the assured or his agent in any examination or in the proofs of the loss or otherwise, shall cause a forfeiture of all claim under this policy." The answer set up that the plaintiffs failed to keep a set of books showing a complete record of the business transacted as required by the policy, and, further, that they were guilty of fraud, misrepresentation, and false swearing in making out their proof of loss. The evidence at the trial sufficiently appears in the opinion. There was a verdict and judgment for plaintiffs for the sum of ____ dollars, and defendant appealed.

Rose, Hemingway & Rose, for appellant. Ira D. Oglesby, for appellees.

RIDDICK, J. (after stating the facts).

This is an action against an insurance company to recover the value of a stock of goods destroyed by fire. The main question presented is whether the plaintiffs complied with certain provisions of the policy upon which the action is founded, and by which they were required to keep a set of books showing a complete record of the business transacted, and, in case of loss, to produce such books. After the policy was issued, the plaintiffs conducted their business upon a system of sales for cash except in case of sales to employés, and except in some instances where the purchaser, not having the exact amount of cash to make payment, desired a short time in which to obtain it. As to the sales to employés, a complete record of such transactions was made, and subsequently carried into the ledger, and no reversal of the judgment is asked for any failure in that respect. The sales for cash were also properly recorded, and there was no failure on the part of plaintiffs to comply with the provisions of the policy in regard to such sales. But the bill of exceptions states that in certain instances, "where a small balance, such as 25 or 50 cents, was not paid by the purchaser," the transaction was treated as a cash sale, and a ticket for such small balance was made against the purchaser, and put in the drawer as cash, and the whole amount of the purchase price was entered upon the books as a cash sale, and no further record was made against the purchaser. These transactions were, as above stated, treated as cash sales; and it is plain, we think, that, so far as the insurance company is concerned, they were properly recorded as cash sales. The plaintiffs, it must be remembered, were not offering to sell on credit except to their employés, and they kept no open accounts against other persons. They were proposing to sell for cash only, but, as must sometimes happen when business of that kind is carried on in a small town, a customer would not have the exact change to make payment, and would lack a small balance. Then, when the customer happened to be one with a reputation for honesty, the sale would be made and treated and recorded as a cash transaction, and the amount of the purchase price carried into the total amount of cash sales for that day. Now, it is obvious that the insurance company had no further interest in the matter. It had no interest in the payment of the purchase price, but only in the record of the transaction; and the record, so far as it was concerned and so far as the...