BLAND, P. J.
(after stating the facts as above.)
1. There was no error in striking out that part of the answer in respect to what plaintiff’s son did in plaintiff’s absence; it was not alleged that he ordered or directed the stove to be filled with combustible material at night or that he ever had any knowledge or notice that it had been done. Under no theory of law or justice, is he chargeable with the alleged wrongful act of his son. Wertheimer-Swarts Shoe Company v. U. S. Casualty Company, 172 Mo. 135.
2. Under the clause of the policy, to-wit: “This policy shall be void if the hazard be increased by any means within the control or knowledge of the insured,”' the policy was not forfeited by the sawing off of the charred end of the joist and removing boards that were, in close contact with the flue; by removing them, the evidence shows, the hazard was diminished rather than increased, and the plaintiff was not required to give notice of the alteration. Baldwin v. Ins. Co., 56 Mo. 151.
3. Defendant procured two continuances on account of the alleged absence of material witnesses, In the first one, it was alleged that Henry Miller and A. J.. Clark, one alleged to be a resident of the State of Kansas, and the other of Grove, Indian Territory, were absent and if present would swear that they saw what the witnesses William Bacon and E. J. Barr testified by deposition they saw, to-wit, plaintiff set fire to boxes in his store on February 20, 1902. This application was [640]*640sworn to by W. C. West, agent of defendant. The second application alleged that W. H. Graham and wife, and James E. Graham, who had formerly resided in Denlow, but had removed therefrom, if present would swear that they were present on the night of the fire and would swear that W. H. Graham was permitted by plaintiff to remove certain goods from the building and told that he might receive and retain the goods. None of these witnesses testified at the trial, nor were their depositions taken or their absence accounted for. It was shown that West, the agent of defendant, had been active in hunting up witnesses for the defendant; that he discovered Bacon and Barr and was present at the taking of their depositions. Over the objection of the defendant, plaintiff was permitted to read both applications as evidence in rebuttal. This ruling of the court is assigned as error. There are no admissions against the interest of defendant in either of the applications and they were not offered for the purpose of showing any such admissions; but were offered in rebuttal for the purpose of showing want of good faith in the defense and as affecting the credibility of defendant’s witnesses, Bacon and Barr. If they had that tendency it was not error to admit them; if not, then the reading of them to the jury was error, and prejudicial error at that. It will be noticed in the first application that neither Bacon or Barr is mentioned, but Miller and Clark are the witnesses and the persons named who would swear to the facts which Bacon and Barr ultimately swore to. They (Bacon and Barr) both testified that neither of them ever went under the name of Miller or Clark, so it appears that defendant’s agent, West, was mistaken in one or two things; mistaken in the names of his witnesses when he made the affidavit for a continuance or mistaken as to what they would swear and subsequently discovered his error and then discovered Bacon and Barr whose depositions, tending to [641]*641establish the defense, were procured. This discovery we can infer was made after the second continuance and only a short time before the day set for the trial of the cause, as the depositions were not taken until on the very eve of the trial; all of which looks suspicious to the man of average experience in the trial of law suits. The suspicion is that Bacon and Barr were “trumped up witnesses,” and we think the affidavits were circumstantial evidence tending to show that Bacon and Barr were not worthy of credit.
4. The inventory required to be made once a year was made in August previous to theffire. It contained an itemized account of the merchandise then on hand and furnished the defendant a full and detailed account of the merchandise in the store at the time it was made, the bills of what had been subsequently bought and put in the store, and showed all the additions made to the stock after the inventory was taken. But there was no itemized account of what had been sold for cash, no bill of particulars. The amount of cash taken in was entered daily in a book kept for that purpose and the aggregate of cash taken in was shown to be nineteen hundred and forty-nine dollars. The sales on credit were shown to have been $147.45. The average per cent of profit atwhich plaintiff sold was said by him to be twenty per cent above the cost price, hence all the data was present from which an approximately correct estimate of the contents of the store at the time of the fire could have been readily made. But it is contended that this was not a compliance with the requirements of the policy in respect to keeping a set of books. That requirement reads as follows: “The assured shall keep a set of books which shall clearly and plainly present a complete record of business transactions, including all purchases, sales and shipments both for cash and credit from date of invoice.” A literal compliance with this provision [642]*642of the policy would require the assured to record each article sold, its cost, the price sold for, ahd the name of the purchaser. We do not think a failure to comply literally with this provision of the policy should work a forfeiture. The purpose of the requirement was that in case of loss or damage the assured would have kept such hook accounts of his invoices, purchases and salea as would show the amount of goods on hand at the time of the fire and thus furnish data from which to make a reasonably correct estimate of the loss or damage. We think the plaintiff, by the production of the invoice taken in August, previous to the fire, his bill of purchases after the invoice, his daily cash sales and sales on credit made after the taking of the invoice, furnished the data by which the amount and value of the goods in the store at the time of the fire could have been reasonably estimated and that he ought not to be held to have forfeited his policy for having failed to literally comply with the clause of the policy under consideration.
5. The policy contained a three-fourths value clause. The instruction given by the court in respect to the measure .of damages ignored this clause. It is competent for a fire insurance company and the assured to fix the measure of damages in case of loss or damage by fire. Millis v. Ins. Co., 95 Mo. App. 211; Roberts v. Ins. Co., 94 Mo. App. 142; Dolan v. Ins. Co., 88 Mo. App. 666. But it is contended by plaintiff that this error was non-prejudicial, for the reason the evidence shows that three-fourths of the value of the property destroyed exceeds the total amount of all the insurance. The total insurance on the building was four hundred dollars, on fixtures two hundred and fifty dollars, on the stock of merchandise thirty-seven hundred dollars. The evidence shows the loss on the building to have been six hundred dollars, on fixtures, three hundred and seventy-five dollars, on stock, from fifty-two to fifty-three hundred dollars. Three-fourths of the loss on the building [643]*643would be four hundred and fifty dollars, or fifty dollars in excess of the total insurance.
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BLAND, P. J.
(after stating the facts as above.)
1. There was no error in striking out that part of the answer in respect to what plaintiff’s son did in plaintiff’s absence; it was not alleged that he ordered or directed the stove to be filled with combustible material at night or that he ever had any knowledge or notice that it had been done. Under no theory of law or justice, is he chargeable with the alleged wrongful act of his son. Wertheimer-Swarts Shoe Company v. U. S. Casualty Company, 172 Mo. 135.
2. Under the clause of the policy, to-wit: “This policy shall be void if the hazard be increased by any means within the control or knowledge of the insured,”' the policy was not forfeited by the sawing off of the charred end of the joist and removing boards that were, in close contact with the flue; by removing them, the evidence shows, the hazard was diminished rather than increased, and the plaintiff was not required to give notice of the alteration. Baldwin v. Ins. Co., 56 Mo. 151.
3. Defendant procured two continuances on account of the alleged absence of material witnesses, In the first one, it was alleged that Henry Miller and A. J.. Clark, one alleged to be a resident of the State of Kansas, and the other of Grove, Indian Territory, were absent and if present would swear that they saw what the witnesses William Bacon and E. J. Barr testified by deposition they saw, to-wit, plaintiff set fire to boxes in his store on February 20, 1902. This application was [640]*640sworn to by W. C. West, agent of defendant. The second application alleged that W. H. Graham and wife, and James E. Graham, who had formerly resided in Denlow, but had removed therefrom, if present would swear that they were present on the night of the fire and would swear that W. H. Graham was permitted by plaintiff to remove certain goods from the building and told that he might receive and retain the goods. None of these witnesses testified at the trial, nor were their depositions taken or their absence accounted for. It was shown that West, the agent of defendant, had been active in hunting up witnesses for the defendant; that he discovered Bacon and Barr and was present at the taking of their depositions. Over the objection of the defendant, plaintiff was permitted to read both applications as evidence in rebuttal. This ruling of the court is assigned as error. There are no admissions against the interest of defendant in either of the applications and they were not offered for the purpose of showing any such admissions; but were offered in rebuttal for the purpose of showing want of good faith in the defense and as affecting the credibility of defendant’s witnesses, Bacon and Barr. If they had that tendency it was not error to admit them; if not, then the reading of them to the jury was error, and prejudicial error at that. It will be noticed in the first application that neither Bacon or Barr is mentioned, but Miller and Clark are the witnesses and the persons named who would swear to the facts which Bacon and Barr ultimately swore to. They (Bacon and Barr) both testified that neither of them ever went under the name of Miller or Clark, so it appears that defendant’s agent, West, was mistaken in one or two things; mistaken in the names of his witnesses when he made the affidavit for a continuance or mistaken as to what they would swear and subsequently discovered his error and then discovered Bacon and Barr whose depositions, tending to [641]*641establish the defense, were procured. This discovery we can infer was made after the second continuance and only a short time before the day set for the trial of the cause, as the depositions were not taken until on the very eve of the trial; all of which looks suspicious to the man of average experience in the trial of law suits. The suspicion is that Bacon and Barr were “trumped up witnesses,” and we think the affidavits were circumstantial evidence tending to show that Bacon and Barr were not worthy of credit.
4. The inventory required to be made once a year was made in August previous to theffire. It contained an itemized account of the merchandise then on hand and furnished the defendant a full and detailed account of the merchandise in the store at the time it was made, the bills of what had been subsequently bought and put in the store, and showed all the additions made to the stock after the inventory was taken. But there was no itemized account of what had been sold for cash, no bill of particulars. The amount of cash taken in was entered daily in a book kept for that purpose and the aggregate of cash taken in was shown to be nineteen hundred and forty-nine dollars. The sales on credit were shown to have been $147.45. The average per cent of profit atwhich plaintiff sold was said by him to be twenty per cent above the cost price, hence all the data was present from which an approximately correct estimate of the contents of the store at the time of the fire could have been readily made. But it is contended that this was not a compliance with the requirements of the policy in respect to keeping a set of books. That requirement reads as follows: “The assured shall keep a set of books which shall clearly and plainly present a complete record of business transactions, including all purchases, sales and shipments both for cash and credit from date of invoice.” A literal compliance with this provision [642]*642of the policy would require the assured to record each article sold, its cost, the price sold for, ahd the name of the purchaser. We do not think a failure to comply literally with this provision of the policy should work a forfeiture. The purpose of the requirement was that in case of loss or damage the assured would have kept such hook accounts of his invoices, purchases and salea as would show the amount of goods on hand at the time of the fire and thus furnish data from which to make a reasonably correct estimate of the loss or damage. We think the plaintiff, by the production of the invoice taken in August, previous to the fire, his bill of purchases after the invoice, his daily cash sales and sales on credit made after the taking of the invoice, furnished the data by which the amount and value of the goods in the store at the time of the fire could have been reasonably estimated and that he ought not to be held to have forfeited his policy for having failed to literally comply with the clause of the policy under consideration.
5. The policy contained a three-fourths value clause. The instruction given by the court in respect to the measure .of damages ignored this clause. It is competent for a fire insurance company and the assured to fix the measure of damages in case of loss or damage by fire. Millis v. Ins. Co., 95 Mo. App. 211; Roberts v. Ins. Co., 94 Mo. App. 142; Dolan v. Ins. Co., 88 Mo. App. 666. But it is contended by plaintiff that this error was non-prejudicial, for the reason the evidence shows that three-fourths of the value of the property destroyed exceeds the total amount of all the insurance. The total insurance on the building was four hundred dollars, on fixtures two hundred and fifty dollars, on the stock of merchandise thirty-seven hundred dollars. The evidence shows the loss on the building to have been six hundred dollars, on fixtures, three hundred and seventy-five dollars, on stock, from fifty-two to fifty-three hundred dollars. Three-fourths of the loss on the building [643]*643would be four hundred and fifty dollars, or fifty dollars in excess of the total insurance. Three-fourths of the loss on the stock would be from thirty-eight hundred and fifty-five' dollars to thirty-nine hundred dollars, or from one hundred and fifty-five to two hundred dollars in excess of the total amount of the insurance. Three-fourths of the value of the fixtures would be $281.25 or $18.75 in excess of the total amount of the insurance. We agree that the error in the instruction in respect to the measure of damages was non-prejudicial.
6. The closing address of plaintiff’s attorney to the jury is incorporated in the bill of exceptions. It is too lengthy to be copied in this opinion. He traveled out of the record, objections were made, the court reprimanded the counsel, and the objectional comments were withdrawn. Afterwards the counsel, in a forcible and impassioned manner, commented on the conduct of the defense and referring to the allegations in the answer-charging plaintiff with incendiarism, appealed to the jury to vindicate him by finding a verdict in his favor. An examination of the whole record does not convince us that this line of argument was wholly unjustifiable. The trial court who heard all the arguments of counsel in the case, was in a much better position to know whether or not the jury were improperly influenced than we are, and having found they were not, we do not think the argument of counsel is of a character wholly unwarranted, nor can we come to the conclusion that it prejudiced the jury. Wendler v. People’s House Furnishing Company, 165 Mo. 527. The verdict is supported by the overwhelming weight of the evidence and we do not think it should be disturbed.
The judgment is affirmed.
Reyburn and Goode, JJ., concur.