140 Mo. App. 158 | Mo. Ct. App. | 1909
(after stating the facts). — Some of the defenses set np in the answer were unsupported by evidence, and if there was evidence to support the other defenses, it was not presented in instructions which advised the jury if they found the facts were so and so, their verdict should be for defendant. The evidence was contradictory as to the value of the stock on hand when the fire occurred, some witnesses for defendant stating it was worth no more than $3,500 or $4,000. But there was ample proof for plaintiff the goods on hand at the time of the fire were worth far beyond those estimates. The assignment of the policy and all claims under it was duly proved as alleged in the petition, and that a proof of loss was furnished as required.
The agent of defendant who wrote the policy was notified when the policy was issued of other insurance on the property and not only did he make no objection on that score, but said plaintiffs were entitled to carry yet more insurance. After the date of the contract one member of the firm of F. P. Wrather & Company, A. A. Williams, sold his interest to the other members and Webb, defendant’s agent, was notified of the fact, but neither asserted a forfeiture of the policy nor even objected to the change of ownership. A forfeiture will not be declared on said ground after loss. [Union Trust Co. v. Insurance Co., 79 Mo. App. 362; Millis v. Insurance Co., 95 Mo. App. 211; O’Brien v. Insurance Co., 95 Mo. App. 301; Hamilton v. Insurance Co., 94 Mo. 353.]
We know of no rule of law which would defeat a recovery by this plaintiff as assignee of the policy, because a person who was a member of the firm of P. P. Wrather & Company at the time of the fire, may have testified falsely on the witness stand. The stipulation in the policy that it should be void if the insured misrepresented or concealed any material fact or circumstance, or in case of fraud or false swearing touching a matter relating to the insurance, does not embrace the
As regards the keeping of books and the taking of an inventory, the evidence for plaintiff tends to prove compliance with the policy. They kept a ledger and day books, and appear to have kept them with much detail. An invoice was taken January 2, 1905, and showed some $8,800 worth of goods on hand. There was also an inventory of the purchase made by the firm from Wrather & Company, of Oakton, Kentucky. Nothing was wrong about this matter except the purchase really amounted to $8,903.69, but in entering it on the ledger of F. P. Wrather & Company, it was posted as $4,903 by mistake.
A great deal of stress is laid on the fact that the firm sometimes sold checks or coupon books for five dollars and upwards to' customers, and when these customers got merchandise on these checks or coupons, the sales were not entered on the books of the firm. The evidence goes to show the sales of the checks or coupons were entered at the time they occurred. It is out of the question to hold plaintiff should have been non-suited for failure to keep books and take an inventory, for the evidence inclines very strongly to prove these conditions were fully met. Page after page of sales and purchases shown by the ledger were put in evidence. Defenses based on these matters, as on others, were proper subjects of hypothetical instructions.
The judgment is affirmed.
