Wright v. Union Ins. Co.

• Decision Date: 29 May 1926
• Docket Number: No. 4757.,4757.
• Citation: 13 F.2d 612
• Parties: WRIGHT v. UNION INS. CO. OF INDIANA.
• Court: U.S. Court of Appeals — Fifth Circuit

13 F.2d 612 (1926)

WRIGHT v. UNION INS. CO. OF INDIANA.

No. 4757.

Circuit Court of Appeals, Fifth Circuit.

May 29, 1926.

C. C. Moody and Elbert Johnson, both of Indianola, Miss., for plaintiff in error.

A. A. Armistead, of Vicksburg, Miss., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

This is an action on a fire insurance policy to recover for the loss of a stock of general merchandise and of store fixtures. According to the evidence, the merchandise consisted chiefly of dry goods, groceries, and hardware.

The defense was that plaintiff, the assured, had failed to keep in a fireproof safe, or produce for defendant's inspection, a set of books sufficient to comply with the requirements of the so-called "iron safe clause" of the policy. By that clause an assured covenants and warrants that he will take a complete "itemized inventory" of stock on hand at least once in each calendar year; that he 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 credit," from date of inventory; and that he will keep such inventory and books in a fireproof safe at night and when the building in which the goods are stored is not open for business. The clause then provides that, in the event of failure to produce such set of books for the inspection of the insurance company, the policy shall become null and void.

The policy was issued December 4, 1923, for one year. On January 1, 1924, the inventory required by it was taken. On October 16, 1924, the property insured was destroyed by fire. The books kept by plaintiff consisted of a cash book, a day book, and a ledger. In the cash book all the sales for cash were entered. The day book contained a record of all sales made on credit, showing the date, name of purchaser, a description of the specific articles sold, and the amount. The bulk of plaintiff's sales were made on credit. The ledger was posted daily from the day book, and contained all the accounts of individual purchasers, including date and amount, but the specific articles were not entered in it; instead, they were classified or described in general terms, as "groceries," "dry goods," or "hardware." Plaintiff also kept in his ledger his merchandise account, which at the end of each month he credited in a lump sum with the credit sales shown by the day book during that period. The day book which covered the time from the date of the inventory January 1, to July 15, 1924, having been used up by the latter date, was not put back in the safe, but was left on a shelf in the store and destroyed in the fire which consumed the stock of goods. A day book extending from July 15, 1924, to the date of the fire, was kept in the safe and produced along with the inventory, cash book, and ledger for defendant's inspection....