Brown v. State Ins. Co.

• Decision Date: 14 May 1888
• Citation: 74 Iowa 428,38 N.W. 135
• Parties: BROWN v. STATE INS. CO.
• Court: Iowa Supreme Court

74 Iowa 428

38 N.W. 135

BROWN

v.STATE INS. CO.

Supreme Court of Iowa.

May 14, 1888.

Appeal from district court, Polk county.

Action by K. W. Brown on a fire insurance policy. Verdict and judgment for plaintiff. Defendant appeals.Cummins & Wright, for appellant.

J. K. Macomber and George A. Underwood, for appellee.

REED, J.

The property insured was a stock of merchandise. The policy was issued on a written application, which was indorsed on the policy when it was issued, and which contained the following agreement: “Applicant further agrees to keep a set of books showing all purchases and sales for cash and credit separately, and to keep a copy of the last inventory; and that said books and inventory shall be kept in a fire-proof safe, or in such a manner as to avoid danger of their being destroyed with the property hereby insured.” Defendant pleaded a breach of this undertaking, and plaintiff in reply pleaded a waiver of such breach. The evidence showed without any conflict that plaintiff did not keep his books and inventory in a fire-proof safe, but kept them in a wooden desk in his store, and that they were destroyed by the fire that destroyed the insured property. The matter relied on by plaintiff as constituting a waiver of this breach of his agreement is that defendant, with full knowledge of the manner in which the books and inventories had been kept, and that they had been destroyed by the fire, required him to procure and produce copies of all invoices and bills of goods purchased by him for a number of years before the fire, and that, in obedience to such demand, he did at great expense and trouble procure copies of such bills and invoices, and submitted them to defendant. The evidence shows that defendant, when it received notice of the fire and a proof of the loss furnished by plaintiff, placed the claim in the hands of C. F. Leavitt, one of its adjusters, who went to the scene of the fire and examined plaintiff with reference to the circumstances of the loss. In his examination plaintiff disclosed the facts as to the destruction of the books and inventories, and the manner in which they had been kept. After the examination was closed Leavitt served upon plaintiff a notice in writing, as follows: “You are hereby notified and required to furnish, at your earliest convenience, * * * the State Insurance Company of Des Moines your original bills of purchase, or, if they are lost or destroyed, you will furnish certified copies thereof procured from the various houses from which you have bought goods. These must cover all your purchases from the time you bought the stock of A. P. Condit to time of fire which destroyed said stock. This demand is made under the conditions of the policy you hold of said company. See ‘Proceedings in Case of Loss.’ ” In compliance with this demand, plaintiff did procure from such of the wholesale houses with which he had dealt as continued in business copies of the invoices of the goods purchased by him from them during the time covered by the demand. In doing that he spent considerable time, and incurred some expense and inconvenience. He notified defendant that he had procured them, and Leavitt again went to his place and examined them, and it was not until after that was done that defendant refused to pay the loss.

1. The district court, against defendant's objection, admitted in evidence a letter received by plaintiff, and which purports to have been written by Leavitt. The letter is written on defendant's letter-head, and purports to have been written at its agency at Kansas City, Mo., but there was no...