The fourth ground set out in the motion for rehearing complains of the action of the court below in giving, and this court in approving, the following special charge requested by the insurance company: "If you find from the evidence that the set of books as kept by the assured in compliance with the iron safe clause do not show a complete record of his business transacted; or if you find from the evidence that said books so kept by him failed to show all his purchases of merchandise, both for cash and on credit; or if you find from the evidence that said books so kept by him and presented in evidence do not contain a record of all his sales made, both for cash and on credit, then you will find for the defendant."
The main charge of the court given upon this particular feature of the case was as follows: "Under the clause of the policy sued on, designated as the iron safe clause, and which I instruct you forms a part of said policy, J.N. McBath covenants and agrees to keep a set of books showing a complete record of business transacted, including all purchases, both for cash and credit, together with the last inventory of his business, and in case of loss, to produce such books and inventory, and that in the event he should fail to do so, said policy should be void; and I instruct you that if you find that said J.N. McBath failed to keep said books and inventory in compliance with the provisions of said iron safe clause, then said policy is void, and you will return a verdict for the defendant."
In addition to the charges above quoted, at the special instance of plaintiffs and intervenors, the following instruction was given to the jury: "I charge you, that if you believe from the evidence that McBath kept a set of books and invoice of his goods which would show the amount of his purchases and loss, both for cash and on credit, *Page 239 showing a record of his business with reasonable certainty, so that the loss could be determined with reasonable certainty in the case of fire; and if you further believe from the evidence that the said J.N. McBath produced said books and invoice to the defendant insurance company, after the fire, this would be a compliance with the iron safe clause of said policy."
The main charge of the court, and the special charge given at the request of the insurance company, contain the language used in the iron safe clause itself as to the books required thereby to be kept by the assured. The special charge given at the instance of appellants instructed the jury what would be a substantial compliance with the requirements of the iron safe clause. We think the obligations assumed by the assured under the iron safe clause were presented to the jury in as favorable a light to appellants as they were entitled to demand.
Appellants request this court, in case it should overrule the motion for rehearing, to find, as a matter of fact, that the iron safe clause is a representation, and not a warranty. In the opinion of the court we announced the view that the iron safe clause, as a matter of law, should be treated as a warranty. It is such by its plain terms; and it was the duty of the trial court to so instruct the jury, which it did upon the trial. This is a question of law to be decided by the court, and not a matter of fact to be determined from the evidence.
We are also requested by the appellants to find that the value of the stock of goods destroyed by the fire was greater than the amount of insurance upon the stock; and to find that the insured did keep a set of books, consisting of a day book, blotter, journal, ledger, invoice, and bill book, upon which cash items were kept, but that he kept no separate cash book. From the books alone, it is shown that the value of the stock of goods on hand at the time of the fire could not be accurately ascertained, but with the books and other extraneous evidence produced upon the trial, it was shown that the stock of goods was worth more than the amount of the insurance upon the stock, viz., about the sum of $29,820. This, however, was an issuable matter before the jury, and the evidence relative to the value of such stock can not be said to be uncontroverted. The evidence shows also that the insured did keep a set of books, consisting of a day book, blotter, journal, ledger, invoice, and bill book, and that some cash items were entered in some of these books, but no separate cash book was kept showing the cash sales.
There is no assignment of error that the evidence adduced upon the trial was contrary to the verdict of the jury; and it is not necessary for us to review the facts in the case with the view of determining whether or not the verdict is properly based upon the evidence. We find these facts at the request of counsel for the appellants, so that the correctness of the charges complained of may be viewed in the light of the evidence adduced on the trial. *Page 240
We have carefully considered the motion for rehearing upon all of the grounds set out; but have found no reason to change our views as expressed in the opinion heretofore rendered.
The motion for rehearing is overruled.
Overruled.
LIGHTFOOT, Chief Justice, did not sit in this case.
Writ of error refused.