Question for the Jury.

senting to the assignment, forfeiture, if any, was waived, and company agreed to become answerable to the assignee to extent of his interest, and retention of premium received for the renewal was good consideration for such an agreement. Shearman v. Niagara Fire Ins. Co., 46 N. Y. 526.

Can. C. P. 1; Shafer v. Phoenix Ins. Co., 12 Rep. 736; 53 Wis. 361.

61.- Acceptance of premiums for renewal from a purchaser from original insured operates as a waiver of any objection on the ground of want of insurable interest. Wyman v. Imperial Ins. Co., 16 Duval, 715 (Can. Sup.); rev'g, 20 N. S. 487.

57.- Defendant issued policy for one year covering goods on first floor of build- 62.- The waiver of condition in a poling specified. Year being about to ex- icy, made by the insurer at the time the pire, and the goods in meantime having insurance was originally effected, conbeen removed to an upper story of same tinued through subsequent renewals. building, plaintiff gave notice to defend- Kruger v. Western F. & M. Ins. Co.. 72 ant of such change of location, and paid | Cal. 91; 13 Pac. Rep. 156. for a renewal receipt delivered to him. 63.- A renewal of insurance having No indorsement of the change. Held, been procured by virtue of letters solicitthat company intended to give valid in- ing the same and enclosing application surance in the new location, and that therefor the company cannot, in an action they intended insured to believe that he on the policy, deny the genuineness of had received such. To suppose other- such letters, or that they were authorwise would impute a fraudulent disposi-ized. *Whiting v. Mississippi, etc., Ins. tion. Ludwig v. Jersey City Ins. Co., 48 Co., 76 Wis. 592. N. Y. 379.

64. Question for the jury. It appeared that plaintiff's business when he first insured was carried on in a store having two doors on the street, numbers 319 and 317, and adjoining a similar store with the number 315. During the first year the plaintiff rented the upper part of 315 and made a door between it and Nos. 319 and 317, moving the greater part of the goods to the other side of the wall. He closed the communication to the lower store 315, so that the door 319 was the only way that access to the goods could be had. At the expiration of the year the agent of the company visited the premises, examined the stock in the new

58. Policy was first issued, dated Feb. 16th, 1872, for one year. At the time it was issued there was a mortgage on the premises, the existence of which was not communicated to the company. Subsequently another policy was issued to the same parties on the same terms, for one year, but made payable in case of loss to the mortgagee. This policy was issued 18th of October, 1872. The first policy was renewed February 13th, 1873, and the fire occurred April 12th, 1873. Suit being brought on the first policy and renewal, company defending upon the ground of the existence of the mortgage, held, that there was evidence sufficient storeroom, and consented to a renewal to warrant jury in finding that the defendant had knowledge of the outstanding mortgage at the time of the renewal of the policy and that company was liable upon the ground of estoppel. State Ins. Co. v. Todd, 83 Pa. 272; 6 Ins. L. J.

893.

59. A renewal by company with knowledge of facts revives and restores policy, although by reason of existence of such facts policy might have been declared to be void. Robinson v. Pacific Fire Ins. Co., 18 Hun, 395 (N. Y.)

60.- Renewal by company or its agent with knowledge of forfeiture waives it. Law v. Hand-in-Hand Ins. Co., 29 Up.

for another year. Held, that there was not such a variation of the original contract as to constitute a new agreement, but only a slight change in the old consented to by the parties, and that the question of consent was properly left to the jury, and they having found in favor of the plaintiff that he was entitled to recover. Rolland v. Citizens' Ins. Co., 21 L. C. Jurist, 262 (Can.)

65. Burden of proof to establish a renewal rests upon the insured, and the question is one for the jury when any conflict is in the evidence. Giddings v. Phoenix Ins. Co., 16 Ins. L. J. 510; 7 West. Rep. 272; 90 Mo. 272.

Other Special Cases Cross References.

66.- Where the insured claimed that the amount previously paid. The assured the insurance agent had by parol agreed assented to the change, paid $25 and to renew his policy, and to accept pay-promised to pay the balance. Held, that ment of premium at his convenience, the change of premium terminated the which defendant denied, and claimed arrangement between the parties made that the policy had expired,—held, the in 1846, and that it required a new barcourt properly left the case to the jury gain to effect a continuing arrangement on the theory that all negotiations and and to enable the insured to rely upon becontracts must be considered as merged ing called upon on behalf of the company in the written policy; and, the evidence for the premium, instead of the usual being conflicting, its preponderance was method of taking out renewal receipts for the jury. Id. each year as they were needed. Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 153.

67. Other special cases. Where buildings were insured at Mobile, Alabama, by a company in New York, and subsequent to such insurance, other buildings were erected adjoining the one insured, and the company offered to prove a usage at New York, that when the risk was increased by any circumstance, the assured must give notice thereof to the company, who were then to have the option of continuing or annulling the policy; held, that evidence of such usage was not admissible for two reasons: 1st, because it was local, applying only to insurance on property in the city of New York; and 2d, that if it were a general usage it could not be given in evidence to alter the legal operation and effect of the policy. Stebbins v. Globe Ins. Co., 2 Hall, 632 (N. Y.)

68.- Where a policy was for $1,800 on a grist mill, and $700 on machinery, and successive renewals, year after year, kept up the specifications noted in the renewal receipts until 1847, when the agent was changed, and after that the renewal receipts were in general terms, without specification as before; held, that the intention was to renew in general terms, without any distribution of the risk. Driggs v. Albany Ins. Co., 10 Barb. 440 (N. Y.)

69. In 1846 a verbal agreement was made between an insurer and the insured that until one of the parties dissented the contract of insurance should be continuous, and the president of the insurance company should from year to year bring the renewal receipts and call for the premiums when he thought proper after they become due. In 1847 the president offered to the insured a renewal receipt for the year which would end in July, 1848, claiming a premium of $30 instead of $25,

70.— When a renewal of policy originally issued in the name of two parties is made out in the name of one of them only and suit is brought by him alone, there is no variance. Lockwood v. Middlesex Mut. Ins. Co., 47 Conn. 553; 11 Ins. L. J. 40.

71.-Where a policy was taken out by a firm, and, after a renewal and just previous to its expiration, a new policy was issued of a different amount, the name of the firm remaining the same, but meanwhile new partners were substituted for retiring ones, the last policy issued could not strictly be considered a renewal of the original policy, as it contained no reference to any previous policy, the application therefor being general. In a suit on such policy, it was proper to submit to the jury the special question, whether the application made by the old firm made a part of the new policy. Marthinson v. North British & M. Ins. Co., 7 West. Rep. 637; 64 Mich. 372.

72. Cross references. Section one.

Statutory Provisions.

Section thirteen. Mortgagor and mort-terms of policy delay given for payment gagee. No. 55.

STATUTORY PROVISIONS.

of renewed premium, insurance continues, and if loss occurs insurer is liable, deducting amount of premium due. Sharp, Civ.

73. Canada (Quebec.) When by Code, 1888, § 2,583.

SECTION XII.

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; except that when this policy is canceled by this company by giving notice it shall retain only the pro rata premium.

New York standard form. In phraseology and arrangement, new.

I. CANCELLATION.

General rules.

Cancellation effected.

Cancellation not effected.

Cancellation through broker.
Mortgagee no authority to cancel.
Cancellation through party to whom
loss payable.
Effected by notice.

By consent of insured.
Notice by mail.

When premium not paid in money.
Cancellation as affecting forfeit-

ure.

Questions for a jury.
Other special cases.
Cross references.
Statutory provisions.

pose.

The clause is in the nature of a condition precedent. Van Valkenburg v. Lenox Fire Ins. Co., 51 N. Y. 465; Hollingsworth v. Germania Ins. Co., 45 Ga. 294; Home Ins. Co. v. Curtis, 32 Mich. 402; White v. Connecticut Ins. Co., 120 Mass. 330; Griffey v. N. Y. Cent. Ins. Co., 1 Cent. Rep. 529; 100 N. Y. 417; affi'g, 30 Hun, 299; Runkle v. Citizens' Ins. Co., 6 Fed. Rep. 143 (U. S. Cir.)

4.-Under usual provision giving company the right to cancel a policy, it is en| tirely optional when and for what reason it shall terminate the contract. The motive or sufficiency of the cause for the exercise of this option and election are not to be passed upon by any tribunal, but the will of the company and its election must stand for the reason of its action, and is cause for terminating the risk. International Life Ins. Co. v. Franklin Fire Ins. Co., 66 N. Y. 119.

1. General rules. Condition giving company the option of canceling the policy is valid and will be enforced. Irwin 5.- When application is to cancel an v. National Ins. Co., 2 Disney, 68 (Ohio). old policy and make a new one enlarging 2.- Although company has reserved existing contract, it does not warrant a the right to cancel its policy at its option, cancellation without at the same time it cannot do so when danger of fire is immi- complying with the request as an entirety; nent. Home Ins. Co. v. Heck, 65 Ill. 111. cancellation cannot be effected without 3.- Under the clause giving right at assent or authority of the assured. Wiloption of the company to cancel the pol-kins v. Fire Ins. Co., 30 Ohio St. 317. icy on giving notice and refunding a rata- 6. An insurer must both give notice ble proportion of the premium for the un- of his determination to cancel the policy expired time, it is essential, the premium and also tender to assured the unearned having been paid, that the notice should premium. Planters' Ins. Co. v. Walker be accompanied by payment or tender of Lodge, 1 Tex. Ct. App. Civ. Cas. 758. the correct return premium to the as- 7.- In order to cancel a policy there sured, who must be sought for that pur-must be notice to insured of the company's

Cancellation Effected.

determination to cancel; a notice of a 14.- Notice of cancellation and tender mere desire to cancel is not sufficient. of the return premium must be concurPetersburg, etc., Ins. Co. v. Manhattan rent. Continental Ins. Co. v. Busby, 15 Ins. Co., 66 Ga. 446; Newark Ins. Co. v. Ins. L. J. 736; 3 Tex. Ct. App. Civ. Cas. Sammons, 110 Ill. 166; aff'g, 11 Ill. App. § 101. 230. (Note. The affirmance seems to have been because the finding of the lower court as to the facts was conclusive; the lower court seems to be substantially overruled on the propositions of law.)