A

PPEAL by defendant from a judgment | Alworth v. Gordon, 81 Minn. 445, 84 N. W. of the Supreme Court in plaintiff's 454; Candler v. Mitchell, 119 Mich. 464, 78 favor in an action brought to recover the N. W. 551; Bloom v. Wanner, 25 Ky. L. amount due on a fire insurance policy. Af-Rep. 1646, 77 S. W. 930.

firmed.

The facts are stated in the opinion. Messrs. Lindabury, Depue, & Faulks, for appellant:

The policy was canceled by the notice which the defendant sent the plaintiff, and which was received, but not read.

Davidson v. German Ins. Co. 74 N. J. L. 487, 13 L.R.A. (N.S.) 884, 65 Atl. 996, 12 Ann. Cas. 1065; 1 May, Ins. 4th ed. art. 68: Pressed Steel Car Co. v. Eastern R. Co. 57 C. C. A. 635, 121 Fed. 609; Russell v. Allerton, 108 N. Y. 288, 15 N. E. 391; Coghlan v. Stetson, 22 Blatchf. 88, 19 Fed. 727; where a specified number of days' notice is provided for, the time of notice begins to run from the receipt of the notice by the insured. Thus, in such cases actual, and not constructive, notice is required. See cases cited in that note.

Mr. William K. Flanagan also for appellant.

Mr. Thomas P. Fay, for appellee:

The plaintiff is entitled to recover because there was no actual notice of cancelation of the policy in question given to the plaintiff.

Lattan v. Royal Ins. Co. 45 N. J. L. 453; Davidson v. German Ins. Co. 74 N. J. L. 487, 13 L.R.A. (N.S.) 884, 65 Atl. 996, 12 Ann. Cas. 1065; John R. Davis Lumber Co. v. Hartford F. Ins. Co. 95 Wis. 226, 37 L.R.A. 137, 70 N. W. 84; State Ins. Co. v. 'Hale, 1 Neb. (Unof.) 191, 95 N. W. 473; the policy, a certain number of days' notice is a condition of cancelation.

Thus, in American Glove Co. v. Pennsylvania F. Ins. Co. 15 Cal. App. 77, 113 Pac. 688, where the policy gave the insurer the right to cancel by giving five days' notice, It is generally held that a notice of can- the court said: "Plaintiff in the same concelation to the insured must be clear and nection argues that the notice of April 9th unequivocal, and that a mere expression of was not a notice of cancelation, but merely a purpose or intention to cancel in the of an intention to cancel, and therefore infuture is not sufficient. Mohr & M. Distill- sufficient. But the notice expressed deing Co. v. Ohio Ins. Co. 13 Fed. 74; Runkle fendant's present 'desire to terminate liabilv. Citizens' Ins. Co. 6 Fed. 143; Commercial | ity.' The policy required 'five days' notice Union F. Ins. Co. v. King, Ark., 156 of such cancelation,' and for this reason S. W. 445; Newark F. Ins. Co. v. Sammons, the form of expression was adopted that the 110 Ill. 166; Petersburg Sav. & Ins. Co. v. policy 'will be canceled on our books on Manhattan F. Ins. Co. 66 Ga. 446; Clark v. the 14th inst., five days from date.' MoreInsurance Co. of N. A. 89 Me. 26, 35 L.R.A. | over, the insured was asked to return the 276, 35 Atl. 1008; Lyman v. State Mut. F. policy with the errand premium on that date. Ins. Co. 14 Allen, 329; Chrisman & S. The meaning of this was in substance that Bkg. Co. v. Hartford F. Ins. Co. 75 Mo. the insurance company, desiring then to App. 310; Payne v. Insurance Co. of N. A. cancel the policy and to terminate its risk, 170 Mo. App. 85, 156 S. W. 52; Gardner v. thereby gave the insured the five days' notice Standard Ins, Co. 58 Mo. App. 611; David- prescribed by the policy, at the expiration son v. German Ins. Co. 74 N. J. L. 487, 13 of which the cancelation would become L.R.A. (N.S.) 885, 65 Atl. 996, 12 Ann. Cas. effective. Under many policies of insurance, 1065; Van Valkenburgh v. Lenox F. Ins. Co. and especially those considered in the earlier 51 N. Y. 465; Van Tassel v. Greenwich Ins. cases, no period of notice of cancelation is Co. 151 N. Y. 130, 45 N. E. 365; Planters' required, but it is provided that the inIns. Co. v. Walker Lodge, 1 Tex. App. Civ.surance may at any time be terminated by Cas. (White & W.) 415; John R. Davis Lumber Co. v. Hartford F. Ins. Co. 95 Wis. 226, 37 L.R.A. 131, 70 N. W. 84.

the company on giving notice thereof to the insured. When such a provision has been involved, it has been uniformly held that the The provisions in the policies involved in notice given the insured must show a presthe cases just cited were about evenly di-ent cancelation, and not a mere intention vided between those giving the insurer the right to cancel upon giving notice without specifying any time, and those conferring this right by giving a specified number of days' notice.

In this connection a distinction is to be observed between a mere notice of intention or purpose of the insurer to exercise the right of cancelation at a future time, and a notice which advises the insured of the insurer's present resort to the right of cancelation, to become effective at some subsequent time. The question whether a particular notice belongs to one class or the other may obviously be affected by the question whether or not, by the terms of

to cancel in the future.
It is clear
that such cases are inapplicable to the case
at bar. Here five days' notice of cancelation
was required by the policy, and that notice
was given. The notice did not express a
mere intention of the defendant to there-
after avail himself of the cancelation priv-
ilege, but a present resort to it, which
would become effective at the expiration of
the prescribed period of notice."

In Davidson v. German Ins. Co. 74 N. J. L. 487, 13 L.R.A. (N.S.) 884, 65 Atl. 996, 12 Ann. Cas. 1065, where the policy provided that the insurer should have the right to cancel by giving five days' notice, it was argued that a notice of present cancelation

Walker, C., delivered the opinion of the carry any insurance on his stable. The court:

-where the notice expressed the insurer's present desire to terminate the liability, and stated that the policy would be canceled on a certain date five days from the writing of the letter, and requested the insured to return the policy with the earned premium on the date named for cancelation. American Glove Co. v. Pennsylvania F. Ins. Co. 15 Cal. App. 77, 113 Pac. 688;

-where an agent wrote the insured ask ing a return of the policy, and enclosed a letter to the agent from the insurer stating that the property covered was such as the insurer did not accept, and concluding "we will have to ask that you cancel and return | the policy." Phoenix Ins. Co. v. Hunter, 95 Miss. 754, 49 So. 740;

-where agents notified the insured that they had renewed his policy, but that the insurer had ordered it canceled since all

two others, was received by the plaintiff, formal notice of its intention to cancel" at his butcher shop, and carried home by the policy, shortly describing it, and fol him and laid upon the ice chest unopened, and was afterwards thrown in an unused ice chest with other papers where it remained until after the fire, when the plaintiff's daughter discovered it, and the plaintiff opened it and read the notice from the insurance company.

The policy contained a clause authorizing cancelation, so much of which as is pertinent reads as follows: "This policy sl all be canceled at any time at the request of the insured, or by the company by giving five days' notice of such cancelation." The notice of cancelation mailed to the plaintiff started out by saying that the company, through its agent, "herewith gives five days' to its agent, stating that the risk was worth | a greater rate, "and unless you can obtain this rate we will ask you to very kindly take up the policy and return it to us for cancelation." Waterloo Lumber Co. v. Des Moines Ins. Co. Iowa, L.R.A.

lows that with the assertion that liability will absolutely cease at noon December 28, 1909. The point is made that the plaintiff did not receive five days' notice of cancelation, because the notice, although dated six days before the date mentioned for taking effect, was only received by the plaintiff on December 24th, or four days previous; that is, the envelop containing it was then received.

The notice was sufficient in form. Like the notice in Van Valkenburgh v. Lenox F. Ins. Co. 51 N. Y. 465, referred to in the opinion of Mr. Justice Depue in Lattan v. Royal Ins. Co. 45 N. J. L. 453, at page 458, it was somewhat equivocal in its terms, but like that in the latter case (Lattan v. rected the latter to transfer the risk to another company, but no transfer was made before a loss occurred.

Notice after loss.

A notice of the insurer's previous election to terminate the policy, given the insured after a loss has occurred, is manifestly insufficient to avoid liability on the policy. Stebbins v. Lancashire Ins. Co. 60 N. H. 65.

(N.S.) —, 138 N. W. 504;
-where the insurer wrote its agent to
cancel a policy or get an increased rate of
premium, and did not prescribe the time
within which it must be done, and the agent
informed the insured of his instructions,
but agreed to two days' delay in order that
the insured might get other insurance. Me-
Lean v. Republic F. Ins. Co. 3 Lans. 421; |
-where a binding slip for the renewal of
a policy had been issued, and the insurer
notified the insured's brokers that the ap-
plication for a renewal for the amount previ-stroyed.
ously carried was refused, but that it would
be renewed for a less amount if wanted,
and that the brokers might consider the
risk not binding for more than the less
amount. Van Tassel v. Greenwich Ins. Co.
151 N. Y. 130, 45 N. E. 365;

And there is no compliance with a provision requiring five days' notice of cancelation by the insurer, where, although the latter notified its agent twelve days before the fire to cancel the policy, no notice was given the insured of an intention to cancel until the day after the property was de99 App. Div. 69, 91 N. Y. Supp. 393. And in Partridge v. Milwaukee Mechanics' Ins. Co. 13 App. Div. 519, 43 N. Y. Supp. 632, affirmed in 162 N. Y. 597, 57 N. È. 1119, where the right was reserved to the insurer to cancel the policy by giving five days' notice, there was held to be no cancelation effected where the insurer's agent wrote the insured stating that he inclosed other policies to take the place of that in question, which he requested returned, it appearing that this letter was not received by the insured, who was ill until the day before the fire, and not opened until after its occurrence, and it also appearing that no refund of premiums was made according to the provisions of the policy.

Yoshimi v. Fidelity F. Ins. Co.

-where the agent, who claimed that the premium had not been paid, wrote insured directing attention to cancelation conditions of the policy, but making no refund, although the jury found that the premium was paid. Savage v. Phoenix Ins. Co. 12 Mont. 458, 33 Am. St. Rep. 591, 31 Pac. 66. In Etna Ins. Co. v. Maguire, 51 Ill. 342, where the policy gave the insurer the right to cancel the policy after notice given to the insured of its intention to cancel, there was held to be no cancelation of the policy And where a policy which had been aswhere the local agent of the insurer was di-signed by the insured provided that the inrected by the general agent of the company to cancel the policy, and he forwarded a notice of cancelation addressed to a place where the insured seldom received mail, and before this was delivered to the insured he met the latter and informed him that he need not pay any attention to the notice of cancelation as he believed the insurer had been misinformed as to the desirability of the risk, and that he would carry it until further notice, and it also appeared that the insured, upon receiving the notice of canrelation after his talk with the agent, di

surer should give five days' notice of cancelation, and the insurer notified its agent to cancel the risk, and the latter wrote the assignee directing him to send the policy to another agent in order that the latter might procure the insured's cancelation receipt, and it further appeared that the property was destroyed before the matter was taken up with the insured, it was held that no cancelation of the policy resulted. Southern Ins. Co. v. Williams, 62 Ark. 382, 35 S.

W. 1101.

In Clark v. Insurance Co. of N. A. 89

is, after notice brought home to the plaintiff. As was said by this court in Davidson v. German Ins. Co. 74 N. J. L. 487, at page 491, 13 L.R.A. (N.S.) 884, 65 Atl. 996, 12 Ann. Cas. 1065: "The notice is not required to be in writing. It may be verbal or oral. No particular form of notice is prescribed. It is only necessary that the company positively, distinctly, and unequiva verbal notice of immediate cancelation is insufficient. Bard v. Fireman's Ins. Co. 108 Me. 506, 81 Atl. 870.

Royal Ins. Co.) was unequivocal in its im-, days before the date mentioned, it became port. It stated that cancelation would take efficacious in five days after service; that place on a certain date, and, while cancelation might not have gone into effect that day, by reason of belated notice, nevertheless, it would become effective five days after actual notice received by the plaintiff, for it informed him in plain terms that the company gave five days' formal notice of its intention to cancel the policy. If, therefore, the notice was served less than five Me. 27, 35 L.R.A. 276, 35 Atl. 1008, where the insurer reserved the right to cancel the policy by giving five days' notice to the insured, and it appears that when the insured notified the agent of the destruction of the property, the agent stated that he had just received notice to cancel the policy, there is no discussion of the sufficiency of the notice, but it is held that the policy was never canceled.

Although the court in Joyner v. Scottish F. Ins. Co. 155 N. C. 255, 71 S. E. 434, refrained from deciding the question, they were of opinion that no cancelation resulted from a notice of cancelation which was mailed on Saturday and received on Monday, where the property was destroyed on Saturday night. It was stated that the policy in this case contained no provision that it could not be canceled without giving the insured five days' notice.

See also Chrisman & S. Bkg. Co. v. Hartford F. Ins. Co. under heading "Where in surer is authorized to cancel by giving a certain number of days' notice."

Effect of mistake in designating time of cancelation.

A mere mistake in a notice of cancelation as to the time when the notice will take effect will not render a notice otherwise sufficient inoperative. Philadelphia Linen Co. v. Manhattan F. Ins. Co. 8 Pa. Dist. R. 261; American Glove Co. v. Pennsylvania F. Ins. Co. 15 Cal. App. 77, 113 Pac. 688.

But where a policy provides that it may be canceled by the insurer giving five days' notice, the insurer cannot change the contract and make a notice effective in three days. Hartford F. Ins. Co. v. Tewes, 132 Ill. App. 321.

Validity of verbal notice.

In Healy v. Insurance Co. 50 App. Div. 327, 63 N. Y. Supp. 1055, where the policy gave the insurer the right to cancel it upon five days' notice, the court stated that it was doubtful if a parol notice of cancelation would be sufficient, but found it unnecessary to decide the question as the jury found that oral notice was not given.

It is held under the Maine Standard Fire policy, providing that "the company also reserves the right, after giving written notice to the insured, .. to cancel this policy as to all risks subsequent to the expiration of ten days from such notice," that

But in Davidson v. German Ins. Co. 74 N. J. L. 487, 13 L.R.A. (N.S.) 885, 65 Atl. 996, 12 Ann. Cas. 1065, where a Standard Fire policy provided that it might be canceled by the insurer by giving five days' notice of cancelation, it was held that the notice was not required to be in writing, but might be verbal, and that it need not be in any particular form, the only requirement being that the insurer positively, distinctly, and unequivocally indicate its intention that the policy should cease to be binding upon the expiration of five days from the time the intention was made known.

Sufficiency of signature.

A notice of cancelation is not ineffectual

because signed in the name of the manager of the insurer, and not in the name of the insurer by its manager, where such notice was given and received as a notice from the insurance company. American Glove Co. v. Pennsylvania F. Ins. Co. 15 Cal. App. 77, 113 Pac. 688.

Notice to foreign corporation.

It has been held that a policy reserving the right to the insurer, after giving notice to the insured, to cancel the policy as to all risks subsequent to the expiration of ten days from such notice, may be canceled by mailing a notice of cancelation or a copy of it in a letter postpaid and addressed to the insured at its postoffice address, or by delivering a copy of the notice to an agent of the insured in charge of its office and business, where the insured is a foreign corporation and all of its officers are absent from the state in which its office, its principal place of business, and the property insured, are situated. Liverpool & L. & G. Ins. Co. v. Harding, 119 C. C. A. 611, 201 Fed. 515.

Notice by publication.

In Frink v. National Mut. F. Ins. Co. 90 S. C. 544, 74 S. E. 33, Ann. Cas. 1913D, 221, where the policy required notice of cancelation, it was held that notice must be personal unless otherwise provided, and that there was no valid notice of cancelation where there was a publication in a news