Standard Fire Ins. Co. v. Willock

• Decision Date: 03 October 1894
• Citation: 29 S.W. 218
• Parties: STANDARD FIRE INS. CO. OF KANSAS CITY v. WILLOCK.
• Court: Texas Court of Appeals

29 S.W. 218

STANDARD FIRE INS. CO. OF KANSAS CITY v. WILLOCK.

Court of Civil Appeals of Texas.

October 3, 1894.

Error from Collin county court.

Action by J. M. Willock against the Standard Fire Insurance Company, of Kansas City, Mo. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Leake, Sheppard & Miller and K. R. Craig, for appellant. Throckmorton & Garnett, for appellee.

Conclusions of Fact.

RAINEY, J.

The conclusions of fact of the court below are found to be correct, and are adopted as the conclusions of this court.

Conclusions of Law.

The clause in the policy, known as the "Iron-safe clause," is a warranty, binding on appellee, and a failure to have complied with it would have defeated appellee's claim. Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co. (decided by this court Sept. 26, 1894) 28 S. W. 1027. The effect of the findings of the court below was that appellee had complied with the provisions of the clause, and the effect of all the assignments of error is an attack upon such finding. While we might have reached a different conclusion from that reached by the trial court, had we tried the case originally, yet there is sufficient evidence to support the verdict; and under the well-established rule of law, as enunciated by our supreme court in many cases, that a judgment of a lower court, when attacked for want of sufficient evidence, will not be reversed, where there is testimony to support it, we do not feel authorized to disturb it. The judgment is therefore affirmed.

Additional Conclusions of Fact.

(Nov. 14, 1894.)

At the request of plaintiff in error, we find the following additional conclusions of fact. The following statement, taken from brief of plaintiff in error, shows the testimony of plaintiff below as to, and his exemplification of, his system of bookkeeping, and the manner in which a record of his business was kept, which statement we find to be correct, to wit:

Plaintiff testified on cross-examination: "The way I kept account of my cash sales was by counting the cash in the drawer every night, and entering it on the blotter as the cash sales of the day. From the blotter it was copied into the cash book. I also entered on the blotter the credit sales, giving the name of the purchaser, the articles purchased, and the price. The credit sales were copied from the blotter into the ledger, in the individual accounts against the parties. My merchandise account consisted of the amount of any bill I purchased from the merchants, under the head of `Merchandise,' without giving the items of the goods purchased; and then, when I paid him in money, that was entered as a credit. I kept a separate account with each firm from whom I purchased goods. This constituted what I called my `Merchandise Account.'" Witness here made samples of entries made in his cash and merchandise book, as follows:

                            Merchandise Account
                             Meyer Bros. & Co
                June 1. By mdse...................... $50 00
                 "  15. To cash................... $50 00
                             Cash Account (P. 39)
                        To cash............... $10 00
                        By cash....................... $5 00
                

"When I collected in any money on accounts or notes due, I placed this money in the cash drawer, also. If I had the merchandise account, and the book containing the inventory. I could not take them, in connection with the other books that I have, and tell what goods were in the store. I did not use any of these that I have, in making out the itemized statement attached to the amended petition, for the reason that they could be of no service to me. When I paid out any money, I entered it as a credit on cash account. If I had my merchandise book and invoice book, I could have made out the amount of goods that I had on hand, but could not, with all the books I kept and had, have made out an...