Lozano v. Palatine Ins. Co.

• Decision Date: 15 December 1896
• Docket Number: 478.
• Citation: 78 F. 278
• Parties: LOZANO et al. v. PALATINE INS. CO., Limited.
• Court: U.S. Court of Appeals — Fifth Circuit

78 F. 278

LOZANO et al. v. PALATINE INS. CO., Limited.

No. 478.

United States Court of Appeals, Fifth Circuit.

December 15, 1896

E. R Gunby, S. M. Sparkman, M. G. Gibbons, and G. M. Sparkman, for plaintiffs in error.

A. W Cockrell, A. W. Cockrell, Jr., and R. S. Cockrell, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and MAXEY, District judge.

PARDEE Circuit Judge.

This is a suit to recover on two fire insurance policies, copies of which were filed with the declaration. The defendant insurance company filed a plea as follows:

'Now comes the defendant, by its attorneys, and for plea to the declaration herein says: The only contracts or agreements between the plaintiffs and defendant are evidenced by the two instruments in writing called policies, filed with the declaration. In and by said contracts under which the plaintiffs claim as aforesaid the plaintiff agreed that said contracts should become null and void in the event the plaintiffs should fail to comply with a certain warranty set forth therein, and that such failure should constitute a perpetual bar to any recovery by the plaintiffs thereunder, the same being in each policy in the words and figures as follows: '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 thirty days from such date, 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 a complete record of business transacted, including all purchases, sales, and shipments, both for cash and for credit, from date of inventory, as provided for in first section in this clause, and during the continuance of this policy. (3) The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken securely locked in a fireproof safe at night and at all times when the building mentioned in this policy is not actually opened for business; or, failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building. In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.' And the plaintiffs, therein called the assured, did fail to comply with said warranty in the several particulars hereinafter set forth; that is to say, that such books and inventories as were kept by the plaintiffs were not kept as aforesaid, in this: that at night, about 4 o'clock a.m., when said building was not open for business, and when said building was destroyed by fire, said books were in said building, and not in any safe, and were destroyed by fire; and that the said plaintiffs wholly failed to produce any books for the inspection of this company, the defendant aforesaid. And this the defendant is ready to verify.'

To this plea the plaintiffs demurred on the following ground:

'That the alleged warranty or covenant of warranty set up in the pleas of the defendant, as the same appears in the policies of insurance made a part of the pleadings in this cause, and referred to in the defendant's pleas, does not constitute a warranty, and the failure of the plaintiffs to comply with the said alleged warranty does not constitute a bar to recover on said policies.'

After filing the demurrer, the parties stipulated as follows:

'It is stipulated and

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