Henry v. Queen Insurance Co. of America

KEY, Associate Justice. Plaintiffs in error brought this suit against the defendant in error, seeking to recover upon a $6,000 fire insurance policy. The defendant pleaded a forfeiture of the policy, on account of breaches of conditions in the policy, in failing to keep the books and inventory required by the iron safe clause. After the testimony was introduced, the trial court instructed a verdict for the defendant, which instruction is assigned as error. The case is quite similar to the case of Monger & Henry v. the Delaware Insurance Company, decided by this court and reported in 74 S. W. Rep., 792, and also decided by the Supreme Court and reported in 79 S. W. Rep., 7, and 97 Texas, 362. In that case this court reversed and rendered in favor of the insurance company, because of the failure to keep such an inventory as was required by the iron safe clause of the policy. The Supreme Court did not decide that point, but affirmed the judgment of this court because of the failure of Monger & Henry to keep *631 a set of books showing a complete record of the business transacted, as required by the contract. In this case the inventory is equally as defective as the one in the other case, and the books relied on are the identical books that were held by the Supreme Court to be insufficient. The plaintiffs offered alleged expert testimony tending to show that the books and inventory in question were such as are commonly made and kept by merchants, which testimony was excluded, and error is assigned upon such exclusion. We are of opinion that the rulings complained of were correct, and especially the ruling in reference to the books. For a period of about six months the plaintiffs kept no book showing cash sales. It is true that during that period they kept strips taken from the cash register showing sales, but the testimony leaves it in doubt as to whether these were all dated; but, even if they were, the Supreme Court held in the former case that they were no part of any book, and said: “We have no hesitation in holding that the cash strips kept by the plaintiffs were not such compliance in any sense whatever.” The contract required the plaintiffs to keep books showing a record of their business; and the fact that merchants generally may, in some particulars, fail to keep books, but keep records upon strips of paper in lieu of books, ought not to change the terms and effect of the contract. No error has been shown and the judgment is affirmed. Affirmed.