December 13, 1924. The opinion of the Court was delivered by "The plaintiff brought suit in each of the above cases on October 10, 1922, on policies of fire insurance for $2,000 each, issued by the respective defendants over a stock of merchandise, which was later burned. The cases were tried together by agreement in the Court of Common Pleas for Greenwood County at the April term, 1923, before Special Judge R.E. Babb and a jury. Verdict was found for the plaintiff in each case for $2,000, and judgment entered thereon, from which this appeal is duly prosecuted." The exceptions, 22 in number, raise the following questions: Competency of evidence; was the iron-safe clause breached? was the breach of the iron-safe clause waived? errors in the Judge's charge; and that the verdict was contrary to the law and evidence.
We see no error in the admission of the evidence as complained of. The appellants denied their liability to pay the *Page 386 policies, and that waived the right to require proof of loss, and the record shows that proper proof of loss was filed. There was no error in admitting copies of invoices; the originals were burned up; but, as a matter of fact, the record shows that the duplicate invoices were not admitted in evidence, but the witness only used them to refresh his memory, and then testified from his own memory; there was other evidence from other witnesses as to the value of the stock of goods destroyed, to wit, Spivey, McCord, Stalnaker, and Hasting. Gwathmey v. Foor Hotel Company, 121 S.C. 237;113 S.E., 688. Copeland Company v. Davis (S.C.),119 S.E., 21. Truck Growers' Association v. S.A.L.Railway (S.C.), 121 S.E., 564.
We see no error in allowing evidence of witnesses to show the value of the goods a short time before the fire and the amount of sales since. That was for the jury to consider. 26 Corpus Juris, 535, states:
"Where the value of the property injured or destroyed is in issue, any competent evidence either direct or circumstantial, is admissible which tends to show such value, and testimony as to such value is competent, notwithstanding insurer has the right to demand the production of inventories and books which the policy required insured to keep." McMillanv. Insurance Company, 78 S.C. 433; 58 S.E., 1020, 1135.
There is no doubt that there was a breach of the iron safe clause, and that the respondent did not make the inventory as far as one policy was concerned in 30 days. Any evidence showing a waiver on the part of the company as to the breach of these conditions was competent. The evidence tended to show knowledge on the part of the defendant's agent, Graham, who wrote the policies and delivered them to the respondent, that he did not have a safe, and the manner in which his books were kept.
The evidence was sufficient to carry the case to the jury for their determination, as to whether there was evidence to show knowledge on the part of the *Page 387 defendant's agent of the forfeiture and its consequent waiver. Pelzer v. Sun Fire Office, 36 S.C. 215;15 S.E., 562. Graham v. Insurance Company, 48 S.C. 223;26 S.E., 323; 59 Am. St. Rep., 707. Pearlstine v. InsuranceCompany, 74 S.C. 246; 54 S.E., 372.
The inventory was taken in 30 days after the London Lancashire issued its policy. The other company issued its policy on September 30th, and no inventory as to it was taken until the following January. As to forfeiture, Mr. Justice Hydrick said:
"The Courts are generally inclined to hold the insurer to the performance of his contract, and to prevent, as far as it can be done in reason and justice, an unfair reliance on his part upon technical conditions of the contract to defeat it, because the Courts lean against forfeitures. In respect of such conditions a law of waiver or estoppel, which may be said to be peculiar to insurance contracts, has grown up. If and when they are of substantial merit they will be enforced; but the Courts are not inclined to allow them to operate merely as snares for the unwary."
The defendants did not return or offer to return the premium unearned after suit was brought or during the trial. Mr. Justice Gage in Scott v. Insurance Company, 102 S.C. 129;86 S.E., 489, says:
"It may be the company might, under the contract, have returned the pro rata of the unearned premium, demanded the surrender [of the policy] and insisted upon the forfeiture. It did not choose to do that, and its election to not do it was properly submitted to the jury as some evidence of an intention not to stand upon the words of the contract about a surrender and return of unearned premium."
Failure to return unearned portion of insurance premium where an avoidance of the policy is claimed is evidence of waiver of forfeiture. Spence v. AssuranceCo., 104 S.C. 403; 89 S.E., 319. Etheredge v.Insurance Co., 102 S.E., 313; 86 S.E., 687. Norris v. *Page 388 Insurance Co., 57 S.C. 358; 35 S.E., 572. Madden v.Insurance Co., 70 S.C. 295; 49 S.E., 855. Pearlstine v.Insurance Co., 70 S.C. 82; 49 S.E., 4. Powell v. InsuranceCo., 97 S.C. 375; 81 S.E., 654.
The evidence shows that the appellants, having knowledge that Hughes was not complying with the provisions of the "iron-safe" clause, instructed their agent, Graham, to cancel the policies. Graham neglected to do this. The action of the adjuster was sufficient to carry the case to the jury, taken with all of the evidence in the case as to waiver. We see no error on the part of his Honor in his charge to the jury as complained of.
All exceptions are overruled, and judgment affirmed.
MR. JUSTICE FRASER and MR. ACTING ASSOCIATE JUSTICE P.F. HENDERSON concur.
MESSRS. JUSTICES COTHRAN and MARION dissent.
MR. CHIEF JUSTICE GARY did not participate.