121 F. 937 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1903
(orally). I have considered this motion for a compulsory nonsuit, and, in my opinion, it must be granted. There may be two questions involved. The first question is whether or not the policy was canceled before the fire. The policy declares that it may be canceled at any time by the company by giving
If this is true, the case comes to an end at that point. But it is possible to take the view, and the plaintiff argues that it should be taken, that the correspondence between the parties was not an exercise of the option to cancel, but amounted simply to notice on the part of the company that they would exercise that option at some time in the future; in other words, was a mere declaration of intention to act hereafter on that subject. If that is true, cancellation would not have taken place. Then the second question arises upon another clause of the policy: “This policy, unless otherwise provided by agreement endorsed thereon, shall be void if the subject of insurance be a manufacturing establishment, and if it shall cease to be operated for more than ten consecutive days.” This was a manufacturing establishment. It ceased to be operated some time in April, and the fire did not take place until the 23d of July. Of course, it had ceased to be operated for many more days than ten. But by proper permits of the company, attached to the policy, permission had been given to cease operations until the 20th day of July. Upon April 20th the first permit was issued : “Privilege is hereby granted to cease operations for one month from date.” The effect of that was simply to extend the time of permitted idleness from ten days to one calendar month. In other words, instead of being allowed to have the plant idle for ten days, the plaintiff was allowed to have it idle for. thirty days. The next permit extended the time for another month, until June 20th: “Permission to cease operations is hereby extended to June 20.” Afterwards, permission was further extended to July 20th. The permission ceased upon that day, and the plaintiff’s contention that the clause quoted gave a further period of ten days during which the plant might remain idle cannot be supported. Therefore, if the notice of cancellation was inoperative, it was the plain duty of the plaintiff to take steps to protect itself from the operation of the clause under consideration, and application should have been made for a further extension of permission. This was not done, and the reason is plain. At that time the plaintiff
A compulsory nonsuit will be entered.