158 S.W. 231 | Tex. App. | 1913
By its first assignment the plaintiff in error makes the contention that the failure on the part of the insured to take an inventory of the stock of merchandise within 30 days after the date of the policy worked a forfeiture of the policy, and a verdict should have been directed in favor of plaintiff in error. It was an admitted fact in the trial that an inventory of the stock of merchandise was not taken by the insured within 30 days after the date of the policy, and that none was ever taken before the date of the policy, and the loss occurred several months after the date of the policy. The provision of the policy under consideration has been generally declared by the courts as a valid and enforceable term of contract and to be performed to entitle the insured to recover for a loss. See Insurance Co. v. Mercantile Co.,
Defendant in error relies in this case on invoices of the goods by which they were purchased as being equivalent to an inventory of the stock and as constituting substantial compliance with the requirement of an inventory. The parties having stipulated, as they had the right to do, for a record of the class of an "inventory" which "the assured will take," it is not believed that the courts would be justified in so changing the language of the parties as to compel the insurance company to accept a record of a different class or a substitute for that which it had contracted for. And there is a practical difference between submitting an inventory taken of stock in the store and offering an invoice of goods by which they were purchased. For invoices to have any verity as evidence of goods received into a stock of merchandise, it would become necessary to show outside the invoice that the goods were checked with the invoice at the time they were received into the store and were found to be correct in quantity and soundness, and that the merchandise represented by the invoice was actually received into the house and added to the stock before the close of the period for which the invoices are to be used as an inventory, for it is commonly known that invoices most frequently precede shipments and sometimes the goods are only on approval. It must be assumed that the parties contemplated there was a practical and substantial difference between an inventory and commercial invoices by stipulating, as they did, for an inventory to be taken by the assured. It has been decided that the furnishing of invoices by which goods were purchased was not a compliance with the requirement of taking of an inventory by the assured within 30 days after the date of the policy. Fire Ass'n v. Masterson,
The judgment is reversed and here rendered for plaintiff in error, with costs of appeal and of the county court.