75 Mo. App. 310 | Mo. Ct. App. | 1898
The policy provided that the insurer might cancel the policy by giving five days’ notice to the assured. There was no return, or offer to return, the unearned premium. The evidence relied upon to sustain cancellation was by no means sufficient. It consisted of a conversation between defendant’s agent and the president of the woolen mill. The defendant had directed the agent to cancel the policy, or expressed a desire that it should be cancelled. The agent wrote to defendant requesting it to continue the risk. The defendant answered the agent refusing to do so. The agent testified: “I can not tell the exact date when I received this letter at Independence, but I think about the 14th or 15th of February. Following the receipt of this letter I informed Mr. G-udgell (president of the Mill Go.) that they had declined to reconsider their order. That might have been on the 15th or 16th. Mr. Gudgell still insisted that we make other efforts to have the company carry the policy and I
But to avoidthis, defendant takes the position that the conversation referred to was an actual cancellation and therefore a waiver of notice. It is difficult to enlarge upon a self-evident proposition, whether it be of error or truth. To say the conversation quoted was a present cancellation is turning the future into the present and making an accomplished fact out of an intention. Defendant’s dependence for defense is that the president of the woolen mills promised to bring up'the policy for cancellation. But that, instead of proving cancellation, was proof that there was no cancellation. It shows that cancellation was awaiting the production of the policy. Only the preliminaries for cancellation were being arranged. No intimation was given that the notice which the assured was entitled to would be waived, or that the assured should not receive the unearned premium. The evidence wholly fails to establish defendant’s position.
In the rescission of a contract by one party it is a necessary condition precedent to such rescission to place the other party in statu quo, to restore to him whatever may belong to him by reason of bringing the contract to an end. This is the general rule as applied to all cases of contract. Cahn v. Reed, 18 Mo. App. 115; Robinson v. Siple, 129 Mo. 220. And within this rule, it has been repeatedly held that before an insurance company can make an effective cancellation it must return or tender the unearned premium. May on Ins., sec. 574; Wood on Ins., sec. 113; Hathorn v. Ins. Co., 55 Barb. 28, 42; White v. Ins. Co., 120 Mass. 330; Lumber Co. v. Ins. Co., 95 Wis. 226; Ins. Co. v. Williams, 62 Ark. 382; Ins. Co. v. Ins. Co., 66 N. Y. 122; Hollingsworth v. Ins. Co., 45 Ga. 294; Ins. Co. v. Sammons, 110 Ill. 166. In this case no attempt was made to do so. No effort was made to ascertain what' the unearned premium was, and certainly it will not be pretended that the president of the woolen mill released his claim for that.
But it is said that this particular policy provided that the unearned premium was to be returned “on the surrender of the policy.” And as the policy was not surrendered, it was not. necessary to return the premium. We think the return of the premium and the surrender of the policy, under the terms of the contract, were concurrent acts; that neither could be demanded without the other. But as defendant was the party seeking cancellation, it was its duty first to have tendered the unearned premium on a surrender of the policy. It then would have done all that the contract required it to do in order to place the assured in statu quo. ' So, for this additional reason, we find the defendant without defense to the action.