S. K. Cooper sued on a standard fire insurance policy covering his stock of goods totally destroyed while the insurance contract was in force. Defendant filed specifications of defense, one of which was that plaintiff was precluded from recovery because of failure to comply with the iron-safe clause in the policy; and to this, plaintiff replied that the agent who solicited and wrote the policy was entirely familiar with the method and manner in which plaintiff kept the records of his business, and expressly waived the iron-safe clause in the policy, and, therefore, defendant was estopped from relying thereon as a defense; and besides, that he has fully complied with the iron-safe clause. At the conclusion of plaintiff's *Page 657 evidence, (he being the only witness), the court directed a verdict for defendant; and the case comes here on error.
Plaintiff, inexperienced in the mercantile business, purchased the stock of goods in December, 1920, the goods being inventoried by the vendor. The policy was issued on March 17, 1921, and is the standard form required by Sec. 68, Chap. 34, Code 1923; the fire occurred on the night of Sept. 12, 1921. From Cooper's testimony it appears that defendant's soliciting agent, Harmon, came to his store and after insisting upon plaintiff that he make the contract, was finally told by plaintiff that, "if you will take it out the way things are here, the way I am running the business and insure it I will accept the insurance." A set of books was not pretended to be kept. He used the McCaskey System which showed the credit sales to the customers. The cash sales were kept by a McCaskey cash register; and when a customer paid money on account, the cash was placed in the cash register and a corresponding credit made on the customer's account kept by the McCaskey System. The money was taken out of the cash register every day or so and deposited in the bank and entered on plaintiff's bank book. The invoices of purchases were kept on file. There was an iron safe in the store. The agent, being fully aware of the method of keeping a record of plaintiff's business as above set out, and saying that there was no better system than the McCaskey System, and that "you could not get around it," wrote the policy and was paid the premium. He said that the agent, after looking over the method of keeping a record of the business, said that was all that was necessary to show the business transactions and complied with the terms of the policy, and that it complied with the iron-safe clause. The court would not permit the evidence of the witness, to the effect that the agent had thus waived the iron-safe clause, to go to the jury; holding that a promissory warranty clause in a standard policy could not be waived by a soliciting agent. It appears further from his evidence, that the only original record of the business which was not destroyed by the fire, was the credit sales shown by the McCaskey System which system was in the iron safe, and the inventory of the original stock made at the time of purchase which was then in possession *Page 658 of the vendor, Ray Teter, and at his (Teter's) dwelling house. The evidences of the cash sales and purchases of goods were burned. To supply the cash sales record plaintiff introduced the items and total of his deposits in the bank made by an adding machine at the bank, and which plaintiff says he saw an employee of the bank make out; and to prove the purchases from wholesale houses during the time the business was conducted, duplicate invoices were filed, which plaintiff says were correct duplicates of the originals. Neither the bank official who furnished and added up the cash deposits, nor any person who made the duplicate invoices, were offered as witnesses. Exception was made to these items as not constituting the best evidence.
The correctness of action of the trial court in directing a verdict for defendant depends upon whether defendant is estopped from relying upon the iron-safe clause, and if not; whether plaintiff has shown a compliance with this promissory warranty.
The purpose of the iron-safe clause as to making inventories, keeping the books "which shall clearly and plainly present a complete record of the business transacted including all purchases, sales and shipments, both for cash and credit from the date of the inventory", and that such inventories and records shall be preserved in an iron safe at all times when the store is not open for business, or in a place not exposed to a fire which might destroy the building and goods, is to preserve a record which will facilitate ascertainment of loss in case of fire, and enable the insurer to arrive more accurately at the exact amount of the loss. It is to furnish to him the best means and a reliable source for ascertaining the amount of his liability. It provides the best method by which the respective rights of the parties may be adjusted; and it is designed to protect the insurer against misrepresentation, deceit and fraud. Liverpool Ins. Co. v. Kearney,
The other assignments of error relating to the admissibility of the copies of invoices, the items and total of the cash deposits in bank, and the evidence that the soliciting agent told plaintiff that the McCaskey System then being used by plaintiff was all that was necessary to comply with the terms of the policy, are unnecessary to be considered. The fact that the records were not preserved and not even attempted to be preserved as required, and no waiver or attempted waiver of this requirement was shown, sustains the action of the lower court.
Affirmed.