49 Mo. App. 11 | Mo. Ct. App. | 1892
The plaintiff sued the defendant on a policy of fire insurance, which, amongst others, contained a clause providing that “ the assured under this policy hereby covenants and agrees to keep a set of books, showing a complete record of business transacted, including all purchases and. sales, both for cash and credit, together with the last inventory of said business; and further covenants and agrees to keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store, mentioned in the within policy, is not actually opened for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on; and in case of loss the assured agrees and covenants to produce such books and inventory, and, in event of failure to produce the same, this policy shall be null and void, and no suit or action at law shall be maintained thereon for any such loss.”
It is to be observed that by the clause of the policy in question the plaintiff not only agreed to keep a set of commercial books with the last inventory of his business, but to keep such books and inventory securely locked in a fireproof safe at night, and at all times that the store was not actually open for business, or in some secure place not exposed to the fire that would destroy the house in which the plaintiff carried on his business. The plaintiff bound himself to keep his books and inventory in the one place or the other. He could exercise his option as to that. While he was not required to do both, he was required to do one or the other accordingly as he should elect. There could be no compliance with this fundamental condition of the policy without this unless there was a waiver by the defendant.
The plaintiff contends that as he informed the defendant’s agent at the time he made his application that he had no iron safe, that, when the defendant subsequently issued the policy with this knowledge, it thereby waived the performance of the conditions imposed upon plaintiff by the “iron safe clause.” Now if it be conceded that the defendant knew when it issued the policy that the plaintiff did not have an Ron safe, and that this knowledge was a waiver of the term of
The plaintiff testified that his ledger and a book which showed the amount of goods sold, and to whom, were not destroyed by the fire; that he never left them in the store at night. But that his other books, invoices •and last inventory were -burned in the fire. He further testified that he kept a set of single-entry books, which, with the exception mentioned, had been left in the store and were burned. If the plaintiff had taken the same precaution with respect to his other books as he did as to his day book and ledger, he would not be in default as he is. The condition of the policy was no doubt inserted therein for the purpose of enabling the insurer in case of loss to ascertain with some certainty the amount thereof, and to protect itself against fraud •and imposition. When there is no inventory, invoice and books of account kept and preserved, is not the insurer at the mercy of the insured? The defendant sought to protect itself by the reasonable provisions of •this clause. How could a court or jury determine whether the plaintiff had observed that part of his covenant to keep a set of books showing a complete record
The case of Spratt v. Ins. Co., 13 S. W. Rep. 799, much relied upon by plaintiff, is not in point in this case. The policy there had a clause similar to that here. When the solicitor was preparing the application the applicant told him that he had no safe, and would keep the books in his dwelling which was a part of the building insured. The answer of the applicant showed that the books would be kept in a designated place. This was discoverable upon the application, and was known to the solicitor. It was held that the company thus advised of the purpose of the assured, without objection to it-, issued the policy, and thereby acquiesced in the purpose expressed. The case, if an authority at all, is more favorable to the defendant than the plaintiff for the reason that the application of plaintiff is silent as to where his books would be kept. The “iron safe clause” of the policy was, as near as we can understand it, printed on a slip which was attached to and made part of the policy. It was so attached when received by plaintiff. It is objected by plaintiff that on this account the clause is no part of the policy. The rule is that stipulations such as the one here will be taken as embraced in and constituting part of the policy, if they appear anywhere upon its face though not written in the body.
As it was in effect admitted that the plaintiff had not complied with that part of the iron-safe clause to which we have referred, and as there has been no waiver thereof by defendant, we think there is no error in the action of the trial court, and we will affirm the judgment.