Cont'l Ins. Co. of N.Y. v. Waugh

• Decision Date: 07 June 1900
• Citation: 60 Neb. 348,83 N.W. 81
• Parties: CONTINENTAL INS. CO. OF NEW YORK v. WAUGH.
• Court: Nebraska Supreme Court

60 Neb. 348

83 N.W. 81

CONTINENTAL INS. CO. OF NEW YORK

v.WAUGH.

Supreme Court of Nebraska.

June 7, 1900.

Syllabus by the Court.

1. Where there was attached to, and made a part of, a policy of insurance a warranty providing, in substance, that the assured would take an itemized inventory of stock on hand at least once in each calendar year, and, unless such inventory has been taken within 12 calendar months prior to the date of the policy, one should be taken in detail within 30 days of the issuance of the policy; and, second, that the assured will keep a set of books of account from date of inventory, as provided for in the first section of this clause, and during the continuance of the policy; and the evidence showing that no inventory had been taken within 12 months prior to the issuance of the policy,-- held, that the assured was not required to keep books of account until the taking of the inventory provided for, and that 30 days were given to perform that act; and, where a fire occurred in less than 30 days from the issuance of the policy, no breach existed in either of the conditions in said warranty providing for the keeping of books of account and their preservation in a fireproof safe or other place secure from fire in the building containing the insured stock of goods.

2. Where, in a controversy over the liability of an insurance company under a policy of insurance after a loss has occurred, certain grounds are assigned as a reason for denial of liability, the company, after litigation has begun, cannot be heard to urge other and additional grounds as reasons for their refusal to pay the loss sustained.

3. Where the warranty clause provided for the taking of an inventory within 30 days after the date of the policy of insurance, if one had not been taken within 12 months prior to the issuance of such policy, and that the assured would keep such inventory, and also the last preceding inventory, if such had been taken, in a fireproof safe or other place not exposedto fire in the store building, and an inventory had not been taken within 12 months prior to the issuance of the policy, held, that the clause referring to “the last preceding inventory, if such has been taken,” did not apply to inventories taken more than 12 months prior to the issuance of the policy of insurance.

Error to district court, Cass county; Ramsey, Judge.

Action by one Waugh against the Continental Insurance Company of New York. Judgment for plaintiff. Defendant brings error. Affirmed.

Chas. Offut, Byron Clark, and W. W. Morsman, for plaintiff in error.

Edwin Jeary and Beeson & Root, for defendant in error.

HOLCOMB, J.

In the main, this case is presented for review on substantially the same grounds as those of Insurance Co. v. Waugh (Neb.) 83 N. W. 1118, and Insurance Co. v. Jeary (Neb.) 83 N. W. 78, in which opinions are filed concurrently with this one. The three cases are very similar in their general aspects, and, with some few exceptions, all that is said in the case last above mentioned applies with equal force to the one at bar. The covenants relied upon to operate as a release from liability, by reason of the alleged breach of the same, are contained in the following printed matter, which is attached to the policy of insurance: “Warranty to Keep Books and Inventories, and to Produce Them in Case of Loss. The following covenant and warranty is hereby made a part of this policy: (1) The assured will take a complete, itemized inventory of stock on hand at least once in each calendar year, and, unless such inventory has been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned. (2) The assured will keep a set of books, which shall clearly and plainly present...