Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. usually applied where several proceedings are essential to complete a particular transaction, such as a conveyance or deed. The last proceeding which consummates the conveyance is held for certain purposes to take effect by relation as of the day when the first proceeding was had." We deem the rule applicable to the instant case, and under it plaintiff's title to the land had its inception on the date of the written contract, namely, October 27, 1900, and, so far as it may be necessary to protect his rights in the land conveyed, the title is held to have taken effect by relation as of that date. Sutherland v. Goodnow, 108 Ill. 528; Young v. Guy, 87 N. Y. 457; Cummings v. Newell, 86 Minn. 130, 90 N. W. 311; Womack v. Powers, 50 Ala. 5; Carney v. Reed, 11 Ind. 417; Thompson v. Spencer, 50 Cal. 532. The court erred in holding that the complaint failed to state a cause of action, and the order sustaining the demurrer must be reversed. By the Court. The order appealed from is reversed, and the cause is remanded with directions to overrule the demurrer, and for other proceedings according to law. NEWTON and another, Respondents, vs. THERESA VILLAGE SAME, Respondents, vs. DE FOREST MUTUAL FIRE INSUR- May 3-June 23, 1905. Fire insurance: Fraud and false swearing avoiding policy: Evidence: Weight: Appeal: Findings: Annual inventories: "Three-quarters clause:" Statutes. 1. In an action to recover for loss under a fire insurance policy where liability is denied upon the ground that the insured have been guilty of fraud and false swearing in making proofs of VOL. 125-19 Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. loss, it is incumbent upon the defendant to prove wilful fraud and false swearing by clear and satisfactory evidence. 2. In such a situation, while the evidence, stated in the opinion, tended to show such wilful conduct, it is held not sufficient to call for a conclusion in opposition to the findings of the trial court acquitting plaintiffs thereof. 3. Under policies of insurance requiring inventories to be taken once a year, it is an unreasonable construction that, on pain of forfeiture, each inventory must be taken exactly twelve months after the preceding one. 4. In such case an interval of sixteen months between the last inventory and the fire is held not to have breached the policy. 5. A policy of fire insurance had attached to it a rider: "Permission is hereby granted for other insurance to an amount including this policy aggregating not to exceed seventy-five per cent. of the actual cash value of the property; provided, however, that if at the time of the fire the total insurance on the property shall exceed said seventy-five per cent., this policy shall hereby become void in proportion of such excess to such total insurance." Held, that such "three-quarters clause" was of no effect under the provisions of sec. 1943a, Stats. 1898 (declaring that no fire insurance company doing business in this state shall issue any policy containing any provision limiting the amount to be paid in case of loss below the actual cash value of the property, if within the amount of the insurance for which premium is paid). 6. The words "cash value of the property" in sec. 1943a, Stats. 1898, refer to the property destroyed, not the property insured. APPEALS from judgments of the circuit court for Dodge County: JAMES J. DICK, Circuit Judge. Affirmed. This is a consolidated action to recover upon three standard fire insurance policies issued by the defendant companies, respectively, on a stock of groceries which was owned by the plaintiffs in the city of Beaver Dam, and destroyed by fire a little after midnight on the morning of June 21, 1903. The defenses relied upon were (1) that the plaintiffs were guilty of fraud and false swearing, after the loss, in including in their statement of property destroyed goods that had never been received and were not in fact in the store at the time of the fire; (2) that the plaintiffs failed to take an annual inventory, as they had agreed to do in their applications and as Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. specifically required by the terms of the De Forest policy; (3) that, as to the De Forest Insurance Company, they failed to keep their inventory book in the safe, as required by the policy. The case was tried by the court without jury. The court found against the contentions of the defendants on all points; also that the total value of the property destroyed was $5,469.22, which was covered by insurance, amounting to $5,700, to wit, $1,200 in the Theresa Company, $1,500 in the De Forest Company, $1,500 in the Waterloo Company, and $1,500 in the Mayville Mutual Insurance Company. Judgment was rendered against the Theresa Company for twelve fifty-sevenths of the amount of the loss, and against each of the other two companies for fifteen fifty-sevenths of the loss, and the defendants each appeal. For the several appellants there were briefs by Richmond, Lamb & Jackman, attorneys, and C. F. Lamb, of counsel, and oral argument by Mr. Lamb. M. E. Burke, for the respondents. WINSLOW, J. The defense chiefly relied on was that the plaintiffs were guilty of fraud and false swearing in making their proofs of loss. It is admitted that, in stating the amount of the loss in their proofs, merchandise to the amount of $128.51 was included in the gross amount of property claimed to have been destroyed which had been ordered before the fire but had not been received at the time of the fire; and it is also admitted that upon their examination in Milwaukee, after the making of the proofs, they testified that these goods had actually been received before the fire except as to three invoices from Walsh, Boyle & Co., of Chicago, amounting to $39.61, which they finally admitted had not been received. They claimed that these false statements were made through innocent mistake, while the defendants claimed that they were wilfully made, and this was the issue to bo decided. Upon this issue it was incumbent upon the defend Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. ants to prove the alleged wilful fraud by clear and satisfactory evidence. The trial court having found that it was not so proven, it becomes necessary to examine the evidence to ascertain whether it can be said that this finding is against the clear preponderance of the evidence. The invoices in question were six in number, as follows: Swift & Co., Chicago, $14.75 and $9.70; Durand & Kaspar Co., Chicago, $64.45; and Walsh, Boyle & Co., Chicago, $12.21, $24.95, and $2.45. The bill of the Durand & Kaspar goods was dated June 20, 1903 (being the day preceding the fire), and was received by the plaintiffs on the same day. The bills of the Walsh, Boyle & Co. goods were dated June 22, 1903, and the dates of the Swift & Co. bills do not appear, but all of the goods represented in these invoices arrived at the railway station in Beaver Dam after the fire (although ordered before), and were receipted for by the plaintiff Rissman on June 25th. Adjusting officers representing the various insurance companies arrived on the ground on June 22d and came again June 29th, but at neither date had the salvage been ascertained or the undamaged goods separated from the damaged goods, so that nothing was done. They finally returned to adjust the loss on July 13th, and at this time went over the entire situation with the plaintiffs. At this meeting the plaintiffs produced their books and the last inventory taken by them, dated February 10, 1902, as well as all invoices of goods purchased since the inventory, including the invoices in question. Upon the bills payable account in the ledger the six invoices in question were entered and all dated June 20, 1903. The insurance adjusters made up a statement of the loss in substantially the following manner: They started with the amount of the inventory of stock of February 10, 1902, being the sum of $6,524.55, and deducted therefrom twenty per cent. for depreciation, added outstanding accounts and cash on hand, making a balance of $5,661.06. They then took the amount of credit purchases. Newton v. Theresa Village Mut. Fire Ins. Co. 125 Wis. 289. and cash purchases since the inventory, less rebates, goods returned, bills for advertising, and "bills entered after the fire, $39.61," making $17,347.40. In this sum the amount of credit purchases was $15,780.12, and was obtained from the bills payable book and invoices, and included the six invoices in question. The item of "bills entered after the fire" referred to the Walsh, Boyle & Co. invoices, which the insurance adjusters testify were then admitted by the plaintiffs not to have been received. This amount of $17,347.40 was then added to the previous amount of $5,661.06, making a total on one side of the account of $23,008.46. On the other side, they took the total cash and credit sales since February 10, 1902, less twenty-five per cent. profit, and added thereto the personal accounts of both Newton and Rissman and cash on hand, making a total of $18,534.79. Deducting this from $23,008.46 they obtained a balance of $4,473.67, from which a further deduction of $384.56 salvage was made, leaving a net loss of $4,089.11. During the negotiations the insurance adjusters became suspicious of the six invoices in question, and it appears that one of them took them from the file of invoices, without mentioning the fact to the plaintiffs, and went to the railway station, and there ascertained that the goods were receipted for by the defendant Rissman on the 25th of June. The adjuster retained possession of the invoices for further investigation, and they were not seen again by the plaintiffs until they were produced by the defendants upon the trial, with the exception of the Swift bills, which do not seem to have been accounted for. No agreement was reached at this meeting, but a copy of the statement made by the adjusters was left with the plaintiffs. The plaintiffs prepared formal proofs of the loss, and served the same August 2d. The proofs were prepared for them by an expert, Mr. Brennan of Milwaukee, after an interview with the plaintiffs at Beaver Dam, from papers and books then furnished him by the plaintiffs, includ |