Holcomb, J.
The plaintiff in error (defendant below) resists payment of loss under a policy of insurance issued by it covering a stock of merchandise, which was destroyed by fire during the term for which the policy was written. As presented to this court, the only question involved is the liability of the insurance company under the provisions or covenants commonly known as the “iron safe clause,” which are found in a “rider” attached to the insurance policy at the time it was written and delivered to the assured. The provisions referred to are as follows: “It is expressly warranted that the assured shall take an inventory of the stock hereby covered at least once a year, and shall keep books of account correctly detailing purchases and sales of said stock, and shall keep all inventories and books securely locked in a fire-proof safe, or other place secure from fire in said store, during the hours that said store is closed for business. Failure to observe the above conditions shall work a forfeiture of all claims under this policy.” It appears that a fire occurred in less than one year, and that no inventory has been taken; that books of account, although kept, were not preserved as provided by the clause quoted, and were destroyed in the same fire which burned the insured stock of goods. It will readily be noted that the defense interposed is of the most technical character, and, it may be said, has but little, if any, real and substantial merit. The failure of assured to take and preserve an inventory, and keep books of account, as provided, in a fire-proof safe or other secure place, which is relied upon to operate as a release of the company under its policy of indemnity, in nowise changes the character of the risk assumed or increases its hazard to the smallest extent. Compliance with the provisions quoted could serve no other purpose than as affording a particular means of establishing the amount of loss or damage in the event a loss': should occur. It was an attempt to preserve or perpetu[340] ate evidence by which the liability of the indemnitor was to be fixed should a fire occur during the life of the policy of insurance. All that can be said in its favor is that the parties undertook by this particular method to ascertain and determine the extent of a loss, if one should occur. It is not even suggested in this case that the actual loss sustained was less than the amount named in the policy. In fact, it appears that the loss far exceeded the sum for which the property was insured. It may well be doubted whether a stipulation of this kind is not an independent contract, entirely without consideration, and that its terms can not be invoked to defeat a recovery for loss under the contract of indemnity. We are, however, not disposed to enter into a discussion of this phase of the subject, and do not undertake to decide the question.
It is not claimed that there has been a failure to comply with any condition mentioned, except with regard to the manner .of preserving the books of account. The defense being purely technical, a strict construction of the terms of the warranty is not only proper, but all that the defendant is entitled to ask in the adjudication of its liability upon the contract which it is sought to have forfeited. If the defendant is entitled to a forfeiture of the policy at all, it is because it is so denominated in the contract; and a strict enforcement of its terms gives to it the release contended for. rIt is a matter of every-day knowledge that these forfeiture clauses are prepared with much care, skill and ingenuity, and are frequently resorted to more for the purpose of avoiding, on technical grounds, contracts of indemnity entered into in the best of faith by the assured, and for which he is willing and does pay an ample consideration for the protection sought, rather than of subserving any useful purpose in determining the substantial rights of the parties, as affected by the essential elements of the risk assumed and the indemnity granted. It is with no hesitancy that the [courts declare such forfeiture clauses are to be looked upon with ill-favor, and to be enforced only when the [341] strict letter of the contract requires it.} In Springfield, Fire, & Marine Ins. Co. v. McLimans, 28 Nebr., 846, this court has held that forfeitures are not favored, and should not be enforced unless the courts are compelled to do so, and that such rule applies to insurance policies. In that case the court cites with approval Dickenson v. State, 20 Nebr., 72; Estabrook v. Hughes, 8 Nebr., 496; Hibbeler v. Gutheart, 12 Nebr., 526. In Phenix Ins. Co. v. Holcombe, 57 Nebr., 622, 623, it is said: “Forfeitures are not favored, and in contracts of insurance a construction resulting in a loss of the indemnity for which the insured has contracted will not be adopted except to give effect to the obvious intention of the parties.” See, also, Hanover Fire Ins. Co. v. Dole, 50 N. E. Rep. [Ind.], 772, and authorities therein cited. In Bailey v. Homestead Fire Ins. Co., 16 Hun [N. Y.], 503, where it is held that a clause against the property being incumbered does not invalidate the insurance by an incumbrance on a part of the property only, the judge writing the opinion says: “The defense suggested is founded on the merest technicality. The provision is inserted in a few brief words at the close of a long paragraph relating mostly to matters entirely foreign to the particular provision relied on, and not calculated to attract the attention of the insured, but to operate as a trap to enable the company to receive its premium, but in case of loss to insure a strong probability, in many cases, of being able to interpose a technical defense, which operates as a surprise upon' the party who has relied upon his policy as intended to be a fair contract of indemnity. Under the circumstances of this case, therefore, the insurance company has no right to complain if its technical defense is met by a technical answer.” Other authorities might be cited in further support of the above rule, but it seems unnecessary.
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Holcomb, J.
The plaintiff in error (defendant below) resists payment of loss under a policy of insurance issued by it covering a stock of merchandise, which was destroyed by fire during the term for which the policy was written. As presented to this court, the only question involved is the liability of the insurance company under the provisions or covenants commonly known as the “iron safe clause,” which are found in a “rider” attached to the insurance policy at the time it was written and delivered to the assured. The provisions referred to are as follows: “It is expressly warranted that the assured shall take an inventory of the stock hereby covered at least once a year, and shall keep books of account correctly detailing purchases and sales of said stock, and shall keep all inventories and books securely locked in a fire-proof safe, or other place secure from fire in said store, during the hours that said store is closed for business. Failure to observe the above conditions shall work a forfeiture of all claims under this policy.” It appears that a fire occurred in less than one year, and that no inventory has been taken; that books of account, although kept, were not preserved as provided by the clause quoted, and were destroyed in the same fire which burned the insured stock of goods. It will readily be noted that the defense interposed is of the most technical character, and, it may be said, has but little, if any, real and substantial merit. The failure of assured to take and preserve an inventory, and keep books of account, as provided, in a fire-proof safe or other secure place, which is relied upon to operate as a release of the company under its policy of indemnity, in nowise changes the character of the risk assumed or increases its hazard to the smallest extent. Compliance with the provisions quoted could serve no other purpose than as affording a particular means of establishing the amount of loss or damage in the event a loss': should occur. It was an attempt to preserve or perpetu[340] ate evidence by which the liability of the indemnitor was to be fixed should a fire occur during the life of the policy of insurance. All that can be said in its favor is that the parties undertook by this particular method to ascertain and determine the extent of a loss, if one should occur. It is not even suggested in this case that the actual loss sustained was less than the amount named in the policy. In fact, it appears that the loss far exceeded the sum for which the property was insured. It may well be doubted whether a stipulation of this kind is not an independent contract, entirely without consideration, and that its terms can not be invoked to defeat a recovery for loss under the contract of indemnity. We are, however, not disposed to enter into a discussion of this phase of the subject, and do not undertake to decide the question.
It is not claimed that there has been a failure to comply with any condition mentioned, except with regard to the manner .of preserving the books of account. The defense being purely technical, a strict construction of the terms of the warranty is not only proper, but all that the defendant is entitled to ask in the adjudication of its liability upon the contract which it is sought to have forfeited. If the defendant is entitled to a forfeiture of the policy at all, it is because it is so denominated in the contract; and a strict enforcement of its terms gives to it the release contended for. rIt is a matter of every-day knowledge that these forfeiture clauses are prepared with much care, skill and ingenuity, and are frequently resorted to more for the purpose of avoiding, on technical grounds, contracts of indemnity entered into in the best of faith by the assured, and for which he is willing and does pay an ample consideration for the protection sought, rather than of subserving any useful purpose in determining the substantial rights of the parties, as affected by the essential elements of the risk assumed and the indemnity granted. It is with no hesitancy that the [courts declare such forfeiture clauses are to be looked upon with ill-favor, and to be enforced only when the [341] strict letter of the contract requires it.} In Springfield, Fire, & Marine Ins. Co. v. McLimans, 28 Nebr., 846, this court has held that forfeitures are not favored, and should not be enforced unless the courts are compelled to do so, and that such rule applies to insurance policies. In that case the court cites with approval Dickenson v. State, 20 Nebr., 72; Estabrook v. Hughes, 8 Nebr., 496; Hibbeler v. Gutheart, 12 Nebr., 526. In Phenix Ins. Co. v. Holcombe, 57 Nebr., 622, 623, it is said: “Forfeitures are not favored, and in contracts of insurance a construction resulting in a loss of the indemnity for which the insured has contracted will not be adopted except to give effect to the obvious intention of the parties.” See, also, Hanover Fire Ins. Co. v. Dole, 50 N. E. Rep. [Ind.], 772, and authorities therein cited. In Bailey v. Homestead Fire Ins. Co., 16 Hun [N. Y.], 503, where it is held that a clause against the property being incumbered does not invalidate the insurance by an incumbrance on a part of the property only, the judge writing the opinion says: “The defense suggested is founded on the merest technicality. The provision is inserted in a few brief words at the close of a long paragraph relating mostly to matters entirely foreign to the particular provision relied on, and not calculated to attract the attention of the insured, but to operate as a trap to enable the company to receive its premium, but in case of loss to insure a strong probability, in many cases, of being able to interpose a technical defense, which operates as a surprise upon' the party who has relied upon his policy as intended to be a fair contract of indemnity. Under the circumstances of this case, therefore, the insurance company has no right to complain if its technical defense is met by a technical answer.” Other authorities might be cited in further support of the above rule, but it seems unnecessary.
With reference to the covenants relied on in the case at bar to relieve the defendant, it may be said, in brief, that it is provided that the. assured shall take an inven[342] tory within one year, keep books of account of purchases and sales, and that the books and inventory shall be kept in a fire-proof safe, or other safe place secure from fire, in said store, during the hours the business is closed, and that if these conditions are not complied with, the policy shall be forfeited. The question then is, what action or actions of the assured, or his failure to act, will work a forfeiture of the policy of insurance under the strict terms of the clause quoted? Will a failure to comply with any one condition or all of them together be necessary in order to work a forfeiture? If an inventory is required to be taken, when must it be done to comply with the contract? If the books of account and the inventory which is to be taken at least once a year are to be kept in a fire-proof safe, or other safe place, when is the limit of time after which the non-observance of one or both will work a forfeiture of the policy? Will the failure to preserve books of account in a fire-proof safe, or other place secure from fire, in the store building alone defeat recovery, or is a failure to comply with all the conditions necessary? Doubtless these provisions are intended to provide some means for preserving that Avhich would be evidence of the value of the goods lost or damaged by fire, if one should occur. At the time the policy was issued it is presumed that the insurance company was acquainted with the property insured and the character of the same, and wrote the insurance with reference thereto. The stock of goods, in the course of business, would change by purchases and sales; and the more definitely to determine the effect of these constantly occurring changes, the company has regarded it to its interest to fix a time, a period within which an inventory must be taken, which, with the books, of account, shall show the stock on hand at the time of its taking and the purchases and sales subsequent thereto, and Avhich inventory and books shall be preserved in the manner specified. It would serve no good purpose to take an inventory in a day or week, or even within a month, and a
[343] T”year was named as the limit of time to perform this act. The time, therefore, for taking an inventory of the stock of goods insured did not expire until a year after the policy was written, and as the loss occurred in less time, no default in this condition, or any condition dependent thereon, is shown or can rightfully be claimed^ The books of account were kept as provided for in the warranty. They were not, however, preserved as therein required, and the vital question that presents itself is whether the failure to comply with this one of the different conditions imposed will defeat a recovery. It is conceded by both parties that the representations made were not concerning matters then in existence, but were of a promissory character only, and to be carried out some timé in the future. We have assumed that these conditions were valid and enforceable, and a substantial compliance therewith essential to the right of recovery in case of loss of the property insured. In construing these and similar clauses in insurance policies there is much diversity of opinion among the different courts which have passed upon the subject. Counsel for appellant has called our attention to a number of cases which hold broadly and generally that, such stipulations are valid, and that a full and complete compliance with their terms oh the part of the assured is necessary and required before a recovery can be had. These decisions are based upon what is said to be the general and underlying principles of the ' right of the parties to enter into such a contract as they may desire, and the duty-of the courts to enforce the contract as made. There is no attempt to construe the language used other than in a liberal and general way, and, as it occurs to us in some cases, more favorably to the insurer than the assured. In Kentucky such stipulations are held to be independent of the contract of insurance, and, therefore, void for want of consideration. Phœnix Ins. Co. v. Angel, 38 S. W. Rep. [Ky.