By a Massachusetts law, any provisions of the application, or of by-laws of the company to become part of the contract, must be set forth in the body of the policy. This clause is not in the Massachusetts form of policy. § 155. Who are Agents of the Company.-In any matter relating to this insurance, no person, unless duly authorized in writing, shall be deemed the agent of this company. This clause has already been discussed in a previous chapter, under the subject of waiver and estoppel. The stipulation is not void or against public policy, and force must be given to it.' If the company makes it true, they can have the benefit of it. The clause is tantamount to a notice in respect to the method the company adopts to give authority to its agents; and if not true, or if in fact the agent has an authority broad enough to waive it, the fact may be shown. The true doctrine of waiver and estoppel is expounded in two recent cases in New York.3 Agency involves a relation existing between the company and the agent, independent of the policy, which is res inter alios acta, and hence the relation may be shown by evidence outside the policy.* The editor of the last edition of May says: "It makes no difference that the policy declares the agent to be the agent of the assured, not of the company. For whom a person is acting is a matter of law on the facts of every case. The application precedes the policy; and to hold that a provision in the aftercoming policy, unknown to the assured at the time of application, could turn the insurance agent into his agent, when he thought all the time he was dealing with him and accepting his advice as agent' of the company, would be an outrage." Logically speaking, this stipulation should have been 1 Marvin v. Universal Life Ins. Co., 85 N. Y. 278. Kausal v. Ins. Co., 60 Hun, 389. * Insurance Co. v. Norton, 96 U. S. 17; s. c., 47 Am. Rep. 776. Par234. Wyman v. Phenix Ins. Co., 119 N. Y. 274. Messelbach v. Norman, 122 N. Y. 578. • Commercial Ins. Co. v. Ives, 56 Ill. 403. Baldwin v. Citizens Fire tridge v. Commercial Fire Ins. Co., 17 Hun, 95. Wilkinson v. Ins. Co., 13 Wall. 222. Williams v. Hartford Ins. Co., 54 Cal. 452; s. c., 35 Am. Rep. 77. May on Ins. p. 272 (3d ed. 1891). omitted from the conditions of the New York policy, as it is from the Massachusetts standard policy; but, practically speaking, it is an eminently appropriate provision if it is regarded simply as a notice to the insured that it is unsafe to deal with any pretended representative of the company unless he can show his written credentials.1 Certain States have legislated upon this subject; as, for example, Iowa, the statute of which provides that the soliciting agent shall be held to be the agent of the insurance company, "anything in the application or policy to the contrary notwithstanding." And such statutes are constitutional and controlling, but perhaps unreasonably interfere with the freedom of the parties to settle the terms of their contracts.2 § 156. Renewals.-This policy may by a renewal be continued under the original stipulations, etc., provided that any increase of hazard must be made known, etc. A policy is often renewed by a short form of receipt which obviates the necessity of issuing a new policy. 3 The company may make a valid renewal by parol, even though the policy should stipulate that a renewal must be in writing. The renewal constitutes in effect a new contract based upon the same terms and conditions as the old, but for some purposes may be regarded as a continuation of the old." By mutual consent the new contract may be modified in respect to any of its provisions, as where, for example, the company consents to a change of location." If the company, knowing of the change of location without express consent, issues the renewal receipt and receives the Allen v. German Am. Ins. Co., 123 N. Y. 6. Ins. Co. v. Norton, 96 U. S. 234. Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5. Hill v. London Assur. Corp., 26 Abb. N. C. 203. 2 Continental Life Ins. Co. v. Chamberlain, 132 U. S. 304. McConnell v. Iowa Mut. Aid Assoc., 79 Iowa, 757. Phil. Fire Assoc. v. New York, 119 U. S. 110. First Bapt. Church v. Brooklyn Fire Ins. Co., 19 N. Y. 05. Cohen v. Continental Fire Ins. Co., 67 Tex. 325; s. c., 60 Am. Rep. 24. Peacock v. New York Life Ins. Co., 20 N. Y. 293. Hay v. Star Fire Ins. Co., 77 N. Y. 235; s. c., 33 Am. Rep. 607. Rathbone v. City Fire Ins. Co., 31 Conn. 193. Kunzze v. Amer. Exch. Fire Ins. Co., 41 N. Y. 412. premium, this amounts to an implied consent to the change of location.1 But if the terms of the renewal contract are under negotiation and have not been definitely settled, the promise to give a renewal is not yet binding upon the company." A parol agreement of or for renewal may be made with the same freedom as a parol agreement for original insurance. This provision is omitted from the Massachusetts policy. § 157. Cancellation.-This policy shall be canceled at any time at the request of the insured or by the company, by giving five days' notice of such cancellation. If this policy shall be canceled as hereinbefore provided, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short-rate premium, except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium. There are statutory provisions in New York and elsewhere requiring the companies to cancel on request, and to return the premium less the customary short-rate (see appendix). Such a statute is compulsory upon the company, and when request has been made to it, this of itself terminates the insurance without any formal cancellation or physical defacement of the policy; but the request to terminate the contract of insurance must be made by the insured or his authorized agent to the insurer, or to one having adequate authority to act in the matter in its behalf; and the request must be actually received. When the request is sent by mail, until it reaches the insurer or its agent the cancellation is incomplete and the policy remains in force. The demand for cancellation must be unconditional.1 Where, as in the Massachusetts standard policy, it is provided that the insurance is terminable by the company on 'Ludwig v. Jersey City Ins. Co., 48 N. Y. 379; s. c., 8 Am. Rep. 556. 'O'Reilly v. Corporation of London Assurance, 101 N. Y. 575. Johnson v. Conn. Fire Ins. Co., 84 Ky. 470. 3 Crown Point Iron Co. v. Etna Ins. Co., 127 N. Y. 608 (1891). Goit v. National Protection Ins. Co., 25 Barb. 189. Griffey v. N. Y. Central Ins. Co., 100 N. Y. 417; s. c., 53 Am. Rep. 202. giving notice and refunding a ratable proportion of the premium, giving the notice of cancellation is not of itself sufficient, but the policy continues in force until after payment or tender of the return premium.1 An agent employed merely for the purpose of procuring insurance has no implied authority to cancel.2 Notice by the company to a special agent of the insured appointed to procure insurance is not sufficient. But notice given to the general agent of the assured is sufficient.1 The insertion in the New York policy of the words "by giving five days' notice" is a wise one, and has the advantage of fixing definitely the time at which the policy ceases to be in force after the notice is given, which heretofore has been a vexed question. By the Massachusetts form the company must give a ten days' notice to the insured. § 158. Mortgagee Clause.-If with the consent of this company an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, etc. A form of mortgagee clause is given in the appendix. It is attached to the policy in the form of a rider, and it constitutes a new contract between the company and the mortgagee under the terms and conditions of the policy itself as modified by the provisions of the mortgagee clause. Where without the mortgagee clause the policy is made payable to a mortgagee, the latter stands in the position of the mortgagor, and can recover only when the latter has incurred no forfeiture." In case of loss insurers cannot compel the mortgagee to 1 Van Valkenburgh v. Lenox Fire Ins. Co., 51 N. Y. 465. Lyman v. State Mut. Fire Ins. Co., 14 Allen, 329. Insurance Cos. v. Raden, 87 Ala. 311; s. c., 13 Am. St. Rep. 36. Young v. Newark Fire Ins. Co., 59 Conn. 41 (1890). • Hine v. 29 Hun. 84. Homestead Fire Ins. Co., Harrington v. Fitchburg Mut. Fire Ins. Co., 124 Mass. 126. Grosvenor v. Atlantic Fire Ins. Co., 17 * Hermann v. Niagara Fire Ins. Co., N. Y. 391. Bates v. Equitable Ins. 100 N. Y. 411. Co., 10 Wall, 33. have recourse to any remedy against the mortgagor before calling upon them to pay under the policy. That the property still held by the mortgagee as collateral security for his debt is ample security furnishes no defense to the insurers." In spite of a mortgagee clause the mortgagor may still avail himself, as between himself and the company, of the reinstatement clause if the company elects to rebuild.3 Sometimes, instead of taking advantage of the mortgagor's policy and attaching to it a mortgagee clause, the mortgagee effects an independent insurance upon his own interest as mortgagee. If he does this without any agreement between himself and the mortgagor, the latter has no interest in the insurance moneys, and cannot compel the mortgagee to apply them toward payment of the debt. But if the insurance has been procured by the mortgagee on account of the mortgagor, or at his cost, the rule is otherwise.5 It has been held that the rights of the mortgagee to the benefits of his insurance become fixed at the time of loss, and that he may recover the insurance though the debt is diminished or paid subsequent to the fire." The English courts are disposed to enforce more strictly the doctrine of indemnity, and allowed an insurance company to recover back the insurance money which had been paid to the vendor of real estate while still the owner of the building which he had contracted to sell, and before he had received the purchase price. This decision was put upon the ground that the company became subrogated pro tanto to the purchase price of the land, though unpaid at the time of the fire. This case has already been commented upon in the treatment of subrogation. Although the interesting and learned opinions by Justices Brett, Cotton, and Bowen, pronounced in its support, exhibit some vagueness of thought, it would appear to be the doctrine of that case, that, upon paying the loss under the 1 Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 N. Y. 343; s. c., 14 Am. Rep. 271. Foster v. Equitable Mut. F. Ins. Co., 2 Gray, 216. ? Kernochan v. N. Y. Bowery Fire Ins. Co., 17 N. Y. 428. "Heilmann v. Westchester Fire Ins. Co., 75 N. Y. 7. 4 McIntire v. Plaisted, 68 Me. 363. Foster v. Van Reed, 70 N. Y. 19; s. c., 26 Am. Rep. 544. ' Waring v. Loder, 53 N. Y. 581. Foster v. Equitable Mut. Fire, 2 Allen (Mass.), 216. ' Castellain v. Preston, L. R., 11 Q. B. D. 380. |