J. W. Gillum & Co. v. Fire Association of Philadelphia
| Citation | 80 S.W. 283,106 Mo.App. 673 |
| Parties | J. W. GILLUM & CO., Respondents, v. FIRE ASSOCIATION OF PHILADELPHIA, Appellant |
| Decision Date | 04 April 1904 |
| Court | Court of Appeals of Kansas |
Rehearing Denied 106 Mo.App. 673 at 680.
Appeal from Adair Circuit Court.--Hon. Nat. M. Shelton, Judge.
REVERSED AND REMANDED.
Cause reversed.
Fyke Bros., Snider & Richardson for appellant.
(1) The court erred in giving instruction number 1 for respondents. There was no evidence to support it. It was not pretended that respondents had complied with the contract of insurance sued on. They kept no cash book. It was impossible, as respondents themselves admitted, for any one to tell from the books they kept anything about the amount of the loss. (2) Respondents' instruction No. 4 is erroneous. We believe it has never been held yet, even in an insurance case, that where suit is brought upon a written contract of insurance that recovery can be had upon an oral agreement made before the written contract was entered into. Besides, the respondents, eight months before the fire, received the policy as it was written; took it home, read it over and fully understood its terms and conditions; said nothing until after a fire, and then claim the contract is not what it was agreed it should be. If this can be upheld it is utterly futile to have written contracts. Insurance Co. v Neiheryer, 74 Mo. 167; Helm v. Railroad, 98 Mo.App. 419; Catterlin v. Lusk, 98 Mo.App. 182; Maupin v. Ins. Co., 45 S.E. 1003; Assurance Co v. Norwood, 57 Kan. 617; Mc Honey v. Ins. Co., 52 Mo.App. 94; Ins. Co. v. Buchalter, 83 Mo.App 504. (3) The court erred in admitting in evidence the bank book. It was not made by respondents. It was in no sense a cash book, showing amount of sales. It was utterly useless as a guide to enable appellant's representative, if he desired, to arrive at the amount of respondents' sales, or what he sold. Rives v. Fire Assurance Co., 77 S.W. 424.
Reiger & Reiger for respondents.
(1) Instruction No. 1 given in behalf of respondents was proper. There was evidence to sustain it. There was a substantial compliance with the terms of the contract of insurance. A substantial compliance is all that is necessary. McCullum v. Ins. Co., 61 Mo.App. 352; Burnett v. Ins. Co., 68 Mo.App. 343. (4) The evidence of the amount of the invoices of January and June before the loss was admitted as it might tend to show the amount of goods in the store at the time of the fire. This was necessary for respondents to prove. Appellant further asks instruction No. 1 and the same was given by the court, relating to the value of the property destroyed. It can not now be heard to complain of the admission of the evidence. John Moore was permitted to testify without objection to the invoices and the amount they aggregated. Summers v. Ins. Co., 53 Mo.App. 521. (5) The iron-safe clause is not an issue in this case. No books were burned or necessary invoice lost by reason of the absence of the safe or by reason of the fire. Apart from that, the condition to keep a safe was waived. The books and the inventory upon which the policy was issued were kept in a safe place as provided in the above clause. (6) The case was submitted on the theory of a waiver of the conditions of the policy. Defendant's agent was placed on the witness stand to deny any conversation relating to the contract of insurance and appellant asked instruction No. 3 on the question of waiver, the jury found that issue in respondent's favor. Appellant is bound by that finding. Hayes v. Bunch, 91 Mo.App. 467.
This is an action on a policy of fire insurance issued by defendant to plaintiff on September 20, 1901, covering a retail stock of merchandise in the sum of six hundred dollars with an additional one hundred dollars on store fixtures and furniture. The policy in suit contained what is known as the "Inventory and Iron-Safe Clause." The plaintiffs admit that they did not keep the safe required by the terms of the policy and relied on an alleged agreement with the agent of the insurance company made before the policy was issued and delivered that, it was not necessary to keep books or to keep a safe. It was shown that plaintiffs were fully aware of said conditions in their policy and that they made no objections to it for that reason. The evidence showed that plaintiffs kept a ledger containing their purchases of goods and of their credit sales and had a bank pass book containing a deposit of goods sold for cash with other deposits of money borrowed, but the classes of deposits were not separated and one of the plaintiffs in his testimony arrived at the amount of cash sales by approximation. An inventory taken the day before the date of the policy was produced together with said ledgers containing purchases and credit sales, and the said pass book; all having been kept in a building separate from that of the storeroom. Two other inventories, one taken January 1 and the other June 1, 1902, were destroyed by the fire which occurred June 9 of said year. The plaintiffs, over the objection of defendant were allowed to prove the amount of goods on hand as shown by said inventories. Said "inventory and iron-safe clause" reads as follows: ...
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