The opinion
PARDEE, Circuit Judge
(dissenting). On January 9, 1892, the Western Assurance Company, plaintiff in error, a corporation of Canada, insured Joseph H. Redding, defendant in error, a citizen of Florida, for three years, for $1,000, on a dwelling house in Green-ville, Fla. On February 10, 1893, it insured him, for one year, for $800 on his store building in the same city, for $1,000 on his stock of merchandise in said store, and $200 on his fixtures therein. The store and contents were destroyed by fire at 2 or 3 o’’elock on the morning of October 1, 1893, and'the dwelling on the night of the same day. The Western Assurance Company, claiming that the fire was the result of incendiarism, which Redding had reason to anticipate, and' claiming that Redding had not kept and produced his books as required by the policy, declined to pay the loss. Redding brought suit' in the court below, embracing in his declaration two counts,— *713 the first one upon the policy insuring the store and contents, and the second upon the policy insuring the dwelling. The plaintiff pleaded to the first count, setting up, generally, that Bedding had not kept a set of hooks as required hy the policy, nor kept them safely; that they were burned in the fire which destroyed rhe property; and that he did not produce them after the fire. Redding took issue upon all these pleas, a jury trial was had, and a verdict rendered for the plaintiff for the face of both the policies and interest The only exceptions insisted upon in this court are some taken hy the Western Assurance Company to different portions of the judge’s charge, and the judge’s refusal to give certain special charges asked hy it. The policy upon the store and contents contained the following clause:
“It is a part of the conditions of this policy that the insured shall keep a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, and take an itemized inventory of stock on band at least once every year; and it is further agreed that insured will keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in this policy is not actually open for business, or in some secure place, not exposed to fire which would destroy the house where said business is carried on. It is further agreed that, in event of loss, insured will produce said books and inventory. Failure to comply with these conditions shall render this policy null and void, and no suit or action at law shall be maintained thereunder for any loss.”
The trial judge refused several special charges requested by the defendant in the court below, to the general effect that under the evidence in the case there had been a breach of the above-mentioned stipulation, and that the jury should find that the defendant was not liable on his contract of insurance for the stock of merchandise. The court did charge the jury, after reading the above stipulation, and commenting upon its reasonableness, as follows;
“But as I suggested in your hearing yesterday, that all that can be demanded is a substantial compliance with that, and whether there was a substantial compliance, — whether, in some minutiae, some matter of no special importance, there may have been a variation from that, — that is a question; but tlie court instructs you that there is required, by the policy, a substantial compliance with that clause.”
—And further, after submitting to the jury, as a question of fact, whether the hooks produced hy the plaintiff showed a complete record of his business, as follows:
“The language of the clause of the policy is this: ‘It is agreed that, in event of loss, assured will produce said books and inventory.’ You have heard the testimony in regard to the production of those books, and you will determine, gentlemen, whether that was a substantial compliance with the terms of the policy. One party, the insurer, states he simply produced two books, — the ledger, and what is known as the ‘Stock Book,’ which simply contained the inventory. The party plaintiff claims that he produced those hooks, all except the cash hook, and had not found that. The nonproduction of the cash book is accounted for by saying it was mislaid. It is also in testimony that the cash book which was in use at the time of the fire was not produced at all, but was consumed, and was left, as stated 'by the witness, upon a desk in the store, and was consumed in the fire.”
Proper exceptions were taken in time by the defendant in the court below to the above charges given.
*714 It ought not to be disputed, that the provision in the policy of insurance with reference to the books commonly called the “iron-safe clause” is a warranty. Insurance Co. v. Wilkerson (Ark.) 13 S. W. 1103 ; Kelley-Goodfellow Shoe Co. v. Liberty Ins. Co. (Tex. Civ. App.) 28 S. W. 1027 ; and authorities cited in said cases. It cannot be disputed that the parties to the policy had the right to make the stipulation, and that it should be construed and enforced, like all other contracts, according to the understanding and intent of the parties. In Dwight v. Insurance Co., 108 N. Y. 341 , 346, 8 N. E. 654 , it is said:
“Parties to an insurance contract have tlie right to insert such lawful stipulations and conditions' therein as they may mutually agree upon, or which they may consider necessary, and proper to’ protect their interests, and which, when made, must he construed and enforced, like all other contracts, according to the expressed understanding and intent of the parties making them. If an insurance policy, in plain and unambiguous language, makes the observance of an apparently immaterial requirement the condition of a valid contract, neither courts nor juries have the right to disregard it, or to construct, by implication or otherwise, a new contract in the place of that deliberately made by the parties.”
In Imperial Fire Ins. Co. of London v. Coos County, 151 U. S. 452, 462 , 14 Sup. Ct. 379, Mr. Justice Jackson, for tbe court, says:
“Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy or policies embodying the agreement of the parties. For a comparatively small consideration the insurer undertakes to guaranty the insured against loss or damage, upon the terms and conditions agreed upon, and upon no other; and when called upon to pay, in case of loss, the insurer, therefore, may justly insist upon the fulfillment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. The terms of the policy constitute the measure of the insurer’s liability, and in order to recover the assured must show himself within those terms; and if it appears that the contract has been terminated by the violation, on the part of the assured, of its conditions, then there can' be no right of recovery. The compliance of the assured with the terms of the contract is a condition precedent to the right of recovery. If the assured has violated, or failed to perform, the conditions of the contract, and such violation or want of performance has not been waived by the insurer, then the assured cannot recover. It is immaterial to consider the reasons for the conditions or provisions on which the contract is made to terminate, or any other provision of the policy which has been accepted and agreed upon. It is enough that the parties have made certain terms conditions on which their contract shall continue or terminate. The courts may not make a contract for the parties. Their function and duty consist simply in enforcing and carrying out the one actually made.”
A warranty is to be strictly complied with, in order to avoid tbe breach of a contract. In tbe early case of Pawson v. Watson, Cowp. 785, Lord Mansfield field that a substantial compliance with tbe warranty is never sufficient, saying:
“Nothing tantamount will do, or answer the purpose. It must be strictly performed, as being a part of the agreement.”
Again, in De Hahn v. Hartley, 1 Term R. 343, Lord Mansfield said:
“A warranty in the policy of insurance is a condition or a contingency, and unless that be performed there is no contract. It is perfectly immaterial for what purpose the warranty is introduced, but, being inserted, the contract does not exist, unless it be literally complied with; and Lord Aslmrst said: ‘The very meaning of a warranty is to preclude all questions whether it has been substantially complied with. It must be literally so.’ ”
*715 The law, as declared In these cases, has been recognized and followed in a long line of uniform decisions; and it would seem to be now settled and established law, in insurance cases, if in no others, That a present -warranty must be literally true, and a promissory warranty must be literally fulfilled, otherwise recovery is defeated. May, Ins. (3d Ed.) § 156; Wood, Ins. p. 448. If there are adjudged eases to the contrary, I doubt their authority. In saying this, I am not referring to that large class of cases in which the courts have construed stipulations which the insurance company considered a warranty to be merely representations which, so far as the case in hand was concerned, were not material, nor to that other class of eases where the denominated ‘‘warranties” have been held to have been modified by other provisions in the policy. Hee Insurance Co. v. Johnston, 80 Ala. 407 . 2 South. 125 , and cases there cited. In the present case the trial judge charged the jury that a substantial compliance with the warranty was all that was necessary, and, so far as I citu find in the record, he did not instruct the jury what he meant by a “substantial compliance.” In my opinion, this charge; was erroneous, because it was not in accordance with the law, and tended to mislead and confuse the jury. It substantially, if not literally, instructed the, jury that;, with regard to the compliance with a warranty, they might substitute their own judgment of what was necessary, what was rea sonable, and wha t: was equi t able. A subs ta ntial compliance with a warranty is a very uncertain matter, depending upon the knowledge, relations, and prejudices of the individual called upon to pronounce. A warranty by a merchant: not to store gunpowder in his store building is substantially complied with, in the mind of the ordinary juror, as well as to the satisfaction of some judges, when he only stores it once in a while; and a warranty not to use gasoline and. other explosive fluids in the insured property is substantially complied with -when gasoline is only used once a week, — say on extra occasions. The defendant in this case, according to the evidence, substantially complied with the warranty to keep books, and save them for the information of the insurer, by keeping a full set of books up to within 30 days before the fire, although he thereafter omitted to keep just the book which would have informed the insurer of the amount of goods he had on hand at the time of the fire. He substantially complied with his warranty to keep his hooks in an iron safe by putting, on the evening before the fire, all the books in the safe, except one, which happened to be the one which would inform' the insurer of the amount and value of the goods destroyed by the lire. In my opinion, the judgment of the circuit court should he reversed for error in instructions to the jury.