20 ’ FEDERAL zzronrna, vol. 38. `
"The assured, under this policy, hereby covenants and agrees to keep a set
of books, showing a complete record of all business transacted, including all
purchases and sales, both for cash and credit, together with the last inventory
of said business; and further covenants and agrees to keep such books and in-
ventory securely locked in a fire-proof safe at night, and at all times when the
store mentioned in the within policy is not actually open for business, or in
some secure place, not exposed to a tire which would destroy the house whe1·e
such business is carried on; and, in case of loss, the assured agrees and cove-
nants to produce such books and inventory, and, in the event of the failure
to produce the same, this policy shall be deemed null and void, and no suit or
action at law shall be maintained thereon for any such loss."
Two grounds of defense are interposed: (1) That the fire occurred
"at night," and that the plaintit`f’s mercantile books were in the store
and burned, and were not, as required by the terms of the policy, in a
fire-proof safe, or other place secure from destruction by a fire which
would destroy the store—house. ~ (2) That the fire occurred at a time
when the store was "not actuallyopen for business," and that the books
were in the storehouse, and not in a iire-proof safe, and wereburned;
The facts are that the tire occurred about 9·o’c1ock P. M. on the 9th day
of December, 1887; that the plaintiffs had a fire-proof safe in their store-
house, in which their mercantile books were kept when not in use; that
it was the p1aintif`l`s’ custom, upon opening the store in the morning, to
take the books out of the safe, and lay them on the counter for use dur-
ing business hours, and they were kept out until the business of the day
was closed, and the books posted andwritten up, when they were put
in the safe, which was then locked; that the books were written up dur-
ing the evening of each day, after the rush of business was over. The
store was kept open for customers and business transacted until 8 or 9
oTclock,_and on occasions as late as 11 o’clock at night; and customers
coming during these hours were always admitted and waited upon,
though at times during these hours the front dooriwas locked to prevent
u the intrusion of improper characters who might depredate on the stock
without detection owing to the construction of the store-room, and the
imperfect method of lighting it at night, but the door was always xopened
to customers knocking for admission, and business was carried on until
8 and 9, and sometimes as late asll, o’clock at_night.. This mode of
conducting the mercantile business was common with merchants in the
town and in that region of the country, and was essential to their success
in trade. When the fire broke out, the front door of the storehouse
was locked, but the business of the day was not closed, and the door
would have been opened to any one knocking for admission; ‘ The clerk
was engaged in writing up the day’sbusiness in the books, and had not
i completed his work, when, upon invitation, he stepped into a store next
_door to eat a plate of oysters, and while in there hediscovered theiire.
A ` When the fire broke out one —-of the- plaintiffs, who carriedihe key to the
safe, was in his family room, which connected with the store·room,wait~
, ing to put? the books in the safe, according ‘-to custom, as soon as they
'werewrittenupland the businessof the `day over, and the store closed
torthenight. i   ’