89 P. 960 | Or. | 1907
delivered the opinion of the court.
This is an appeal by the defendant from a decree enjoining him from maintaining an action at law on an award determining the extent of Ms injury by fire to a stock of umbrellas, parasols, etc., and cancelling a policy of insurance on such goods because of an alleged violation of the terms of the contract, which provided that it should be rendered void in case of fraud or false swearing by the insured touching any matter relating to the insurance or to the subject-matter thereof. The issues involved are stated in an opinion announced on a former appeal herein: Fire Association v. Allesina, 45 Or. 154 (77 Pac. 133). The cause was remanded, and from the testimony given at the trial the court found that the actual cash value of all the defendant’s property contained in his store April 38, 1903, the time of the fire, did not exceed $7,109.36, which fact he at all times well knew; but that in a written statement of his loss he falsely swore that 3,351 umbrellas were of the value of $13,-
The insurance adjusters found 505 parasols that had been damaged, but Allesina claims that there were others on the floor
5,461 Assorted umbrellas.............$17,233.00
260 Assorted handles ¡............. 682.50
Umbrella furniture, cover
and cloth ................... 2,420.75
810 Assorted parasols .............. 2,600.55 — $22,935.80
Washington Street store ......................... 10,520.00
’ $33,455.80
To Follmer....................... 13,482.88
$19,972.92
The phrase, “To Follmer,” as used in the inventory quoted, refers to Follmer, Clogg & Co., a corporation, doing business at Lancaster, Pa., from which Allesina purchased goods, and the figures appearing on the line with such words are intended to represent the sum of money he owed that company on account of the goods received from it. An invoice of the goods at the Washington Street store, taken January 1, 1903, shows the value thereof to be $12,217.97, instead of $10,520, as stated in the inventory of the Morrison Street store of that date, as above quoted. F. J. Alex Mayer, plaintiffs agent, as its witness, testified that he made’ a memorandum from the books kept at the Washington Street store, showing the items of the inventory made at that place, which writing having been offered in evidence, is as follows:
*321 Umbrellas ....................................$ 7,883.44
Bases ................................... 1,494.84
Canes .................................. 390.30
Crops, whips ............................ 48.40
Bibs, frames ................................... 833.67
$10,638.55
30 per cent.................................. 3,137.70
$ 8,510.85
Correct by dividing by 130, instead of deducting 30
per cent, makes ............................. 8,865.45
Handles, $5,785.05 ............................. 3,893.53
543 yards of silk, net........I................... 460.00
$13,317.97
H. N. Graham, the manager of the Washington Street store, as defendant’s witness, testified that no< book was kept showing the items of the inventory as disclosed by the memorandum quoted, in referring to which and to the information it affords he further said: “The only way that I can account for these figures is we might have had something of that kind in taking stock. There might have been a slip of paper.” As the value of the goods, $13,317.97, indicated in the memorandum adverted to, exactly corresponds with the worth thereof as entered in the journal of the Washington Street store, we think there can be no doubt that Mayer saw the items specified in some manuscript and copied them correctly. An examination of a copy of the memorandum will show that 30 per cent was deducted from the first five items of the inventory and 50 per cent from the stated value of the handles. Allesina’s attention having been called to the discrepancy in the inventories of January 1, 1903, as it appears by the books of the different stores, plaintiff’s counsel, referring to the value of the goods at the Washington Street store, as disclosed by the books of the Morrison Street establishment, asked:
“How did you get it?” and the defendant replied:
“Taking off 15 per cent, that will give the figure. T do not know what I took off. * *
*322 Q. Can you, by figuring off 15 or 20 per cent, or any other per cent, get $10,520 from the $12,217.97?
A. I wasn’t very particular. 1 took more or less.”
It seems improbable that after deducting from 20 to 50 per cent from the value of most of the stock at the Washington Street store, as appears by Mayer’s memorandum, that a further reduction should be made by Allesina in entering the worth of such goods in the books which he kept at the Morrison Street store. A glance at the inventory of January 1, 1903, as entered on the 'book kept at the Morrison Street store, will show that Allesina indicates his then indebtedness to Follmer, Clogg & Co', to be $13,482.88. There was introduced in evidence the deposition of II. W. Hartman, the treasurer of that corporation, to which is attached a bill showing that from August 26, 1895, to April 15, 1903, the defendant purchased from his principal goods of the value of $79,972.10, and paid on account thereof $66,475.02, thus leaving due thereon, at the latter date, $13,-497.08, or $14.20 more than is admitted by the invoice. An examination of the bill referred to further discloses that from January 1, 1903, to April 15 of that year, Allesina purchased from that corporation goods valued at $2,095.63, and within that time he received credits on account, amounting to $6,581.43, thereby demonstrating that on January 1, 1903, he was indebted to Follmer, Clogg & Co. in the sum of $17,982.88, instead of $13,482.88, as he states in the inventory, a difference of just $4,500.
The books of the Washington Street store indicate the number of parasols sold thereat, but the number disposed of at the other store is included in the number of umbrellas. The testimony shows, however, that from January 1, 1903, to the time of the fire, no parasols had been sold at the Morrison Street store, and for this reason Allesina made a claim for the entire value thereof as stated in the last invoice at time it was made. From January 1, 1903, to April 28 of that year, Allesina’s books and bills show that he purchased and that there were delivered at the Morrison Street store 1,238 umbrellas. Within
From the fraudulent inventory which Allesina testified was correct, and from other circumstances connected with the case, we must determine that his sworn statement of his loss was made with knowledge of its falsity, as to the extent thereof, and, this being so, the decree is affirmed. Aeeirmed.