Home Insurance v. Delta Bank

Campbell, C. J., delivered the opinion of the court. The appellant having demurred to the replications, and, without the demurrer having been disposed of, rejoined, must be held to have waived the demurrer. Besides this, the question raised by the demurrer was fully presented in the trial of the issues of fact, and no harm was suffered by the defendant by the failure to obtain a ruling on the demurrer it presented. Conceding that error was committed in the trial of the issues joined, and that the plaintiff was not entitled to recover for the loss on the “ dry goods and general merchandise stock,” because of the breach of the “ iron safe clause ” of the policy, it seems to us that a recovery was rightly had for the loss on the “ grocery department.” As to that, there was no breach of the condition of the policy in the matter which is claimed to be fatal to recovery for the loss in the other department. The grocery business was begun March [614] 11, 1892, and no inventory of the grocery stock bad been taken, and, therefore, there was no inventory to be preserved and produced as required by the policy. The invoice of the goods by which they were purchased was not the sort of inventory contemplated by the policy, and its non-production was not a breach of it. The evidence shows the loss of goods in the “ grocery department,” covered by the policy sued on, to an amount sufficient to entitle to recover the sum of the policy; and while it appears that there was another policy on the goods covered by this, as we know nothing more of that, and have to deal only with this, that presents no reason for denial of recovery on this. We observe the fact that there was no motion for a new trial, and that the case is before us on a special bill of exceptions, but it specifically informs us that it contains “all the evidence in the case,” and therefore, with all the evidence in the case before us, and seeing that upon that a proper result was reached, even though by wrong methods or by accident; it is right to maintain it. Affirmed.