ON MOTION ROB REHEARING.
ELLISON, J.-Plaintiff contends that since he had a right to take out other insurance up to three-fourths of the value of the property, and that defendant’s consent was not necessary up to that amount, the verdict was for the right party for the reason that the evidence shows, without contradiction by fact or circumstance, that the value of the property, at the time of the fire, was more than $20,000. That being the value, and the additional insurance complained of added to tint named in the application being less than three-fourths of $20,000, it follows (as plaintiff insists) that the additional insurance left the total insurance below the amount he had a right to take.
This argument is based on the statement that the evidence of $20,000 value was not contradicted. This statement is not supported by the record. W. S. Dolan, plaintiff’s son and agent, who took out this insurance, testified that the invoice of the stock in the preceding February, 1898, was $11,000, yet in his proof of loss he stated that it was $8,600.01; and when asked if the latter statement was correct said: ' “I don’t know.” And in his application for this insurance he stated it was $10,000, and that it “will be $16,000, 1-1-99” (January 1, 1899).- This application was made only twenty days before the fire and he then stated that while the last inventory was $10,000, the stock would be $16,000 by January 1, which was only two days later than the fire. In other words, on December 9 he expected he would have as much as $16,000 in stock, yet it is said the evidence is uncontradicted that only two days *677before that time he had more than $20,000 in stock.
But this is not all. On the twenty-fifth of July, 1898, he made oath to a “merchants’ statement” that the greatest amount of stock on hands between the first Monday in March, 1898, and the first Monday in June, 1898, was fifteen hundred dollars. It may be conceded that tax lists frequently do not represent full value, still we have yet to learn that they are fo be wholly disregarded. The foregoing is amply sufficient to show plaintiff’s erroneous view of the evidence.
But in addition to this, witness Bressler for the defense testified that he saw from the plaintiff’s books and account data, which plaintiff’s son and agent told him were correct, that the value of the stock at the fire was $15,099.40.
That there was substantial evidence to contradict that given for plaintiff as to value, is shown by the plaintiff himself in offering, and the trial court in giving, instructions numbered seven, nine and ten. And is also shown by instruction number-seven given for defendant.
We have given all the points and suggestions made by plaintiff in his different briefs a thorough consideration and are convinced that the judgment we have heretofore ordered should not be disturbed. The motion will be overruled.
Smith, P. J., concurs-; Broaddus, J., not sitting.