The Citizens' Insurance Company, of Evansville, Indiana v. Sprague

• Citation: 35 N.E. 720,8 Ind.App. 275
• Decision Date: 12 December 1893
• Docket Number: 946
• Parties: THE CITIZENS' INSURANCE COMPANY, OF EVANSVILLE, INDIANA, v. SPRAGUE
• Court: Court of Appeals of Indiana

35 N.E. 720

8 Ind.App. 275

THE CITIZENS' INSURANCE COMPANY, OF EVANSVILLE, INDIANA, v. SPRAGUE

No. 946

Court of Appeals of Indiana

December 12, 1893

From the Gibson Circuit Court.

Judgment affirmed.

J. E Iglehart, E. Taylor and J. H. Miller, for appellant.

A Gilchrist, C. A. De Bruler and L. C. Embree, for appellee.

ROSS J. REINHARD, J., absent.

OPINION

ROSS, J.

The appellee sued the appellant upon a policy of insurance, issued by it April 18, 1891, insuring his stock of merchandise for one year from that date against loss by fire. On the 18th day of June, 1891, the property insured was destroyed by fire, and appellant refusing to adjust the loss, this action was brought. The cause was tried by the court, without the intervention of a jury, a finding made, and judgment rendered in favor of the appellee.

The only questions urged on this appeal relate to the rulings of the court in sustaining the demurrers to the third, fourth, fifth, and sixth paragraphs of the answer. Each of these paragraphs of the answer is based upon the following clause in the policy, viz:

"Warranted by assured that an itemized inventory of merchandise and store furniture and fixtures shall be made once each year, and correct records of all purchases and freight paid, and all sales made from the time one inventory is made until another shall have been taken; and that such inventories and records, or duplicates thereof, shall either be kept in an iron safe or in another building located sufficiently remote from the property insured under this policy as not to be burned therewith by the same fire."

There is considerable discussion pro and con, as to whether or not the above clause is a part of the policy sued on, and, also, whether or not it amounts to a warranty. The first of these questions must be considered in the affirmative, and the second, for the purposes of this case, will be considered, in effect, as a warranty. What, then, did the appellee, under the terms of this contract, agree to do? He agreed to make out, once each year, an itemized inventory of his merchandise and store furniture and fixtures, and correct records of all purchases and freight paid, and all sales made from the time one inventory was made until another should be taken.

It is averred in each paragraph of the answer that the appellee failed to make out and deposit the inventory as provided in said policy.

Under this clause of the...