(Aftеr stating the foregoing facts.) The testimony of the witness Amerine established that the policy had actually been issued. This being so, the burden was upon the defendаnt to show that it had been canceled in accordance with its terms, and the plaintiff could withstand a motion for non-suit on this ground unless he disproved his right to recover by establishing the existence of other undisputed defensive facts showing that he was not entitled to recover because the policy had actually been so canceled. See
Clark
v.
Bandy,
196
Ga.
546, 559 (
The defendant contends that it was not necessary to give notice of cancellation because the policy itself had been surrendеred to the company. There is no evidence that either the plaintiff, the named insured, or the Lincoln Discount Company in his behalf, ever committed any act that could be considered a surrender of the policy. The plaintiff testified in substance that the agent merely said, in reply to his inquiry, that the poliсy would not be backed up and returned from, the home *77 office for about 30 days. Actual manual delivery of the policy is not essential to the validity of thе contract unless made so expressly by its terms. See Code (Ann.) §§ 56-901, 56-911, and cases cited thereunder. While these .provisions of our Code deal with fire and life insurаnce respectively, they follow the general rule that in the absence of a stipulation in the contract to the contrary, actual delivery may be dispensed with where the policy has been issued and the premium paid. See 29 Am. Jur. Title, Insurance, § 147. The fact that the policy had been temporarily retained by the agent of the defendant for purposes of backing and record, would not relieve the company of its duty under Condition 22 of the policy to give notice to the insured.
The defendant also contends that under the irrevocable power of attorney contained in the bill of sale to secure debt, the Lincoln Discount Company had authority to accept cancellation of the policy. However, the witness Parker testified that his company received no notice of cancellation until after the date of the collision. Price never testified positivеly that the letter dated May 15, 1947 to Lincoln Discount Corporation was ever mailed. His testimony related rather to a letter written after the collision and making reference to an earlier letter. There is, therefore, no evidence that notice was given, as required by the cancellation сlause of the contract, and there was positive evidence that none was received by the finance company, either as agent fоr the plaintiff or otherwise.
The third contention is that the notice of cancellation to Smith Price was sufficient. This is not meritorious unless Price was the agеnt of either the plaintiff or the finance company with authority to receive such notice. The evidence here depicts Smith Price as a man operating a general insurance agency representing several insurance companies. The Lincoln Discount Corporation is engаged in lending money. The two enter into a contract whereby Price will effect loans for the finance company and then insure the property upon which the loans are made through his insurance companies in order to protect the Lincoln Discount Corporation from loss. Parker testified in this connection, “We had an agreement with Mr. Price that he loan money for the Lincoln Discount Corporation through his
*78
office, giving him
the right.to place
all insurance that we required and
that he was able to place
on any loan that he made. That was his revenue, plus
2%
of the amount of the loan paid as a revenue for handling the contracts as a brokerage fee.” (Emphasis supplied.) In
National Union Fire Ins. Co.
v.
Macon Hardwood Lumber Co.,
24
Ga. App.
726 (
The plaintiff further excepts to the ruling out of certain conversations between Price and Gilley relative to the accident. The court held, regarding these conversations, “I- let stay in that he notified Mr. Price he sustained a loss. All the other I rule out.” If the court intended thereby to rule out the testimony of the plaintiff to the effect that he had requested papers *79 to fill out, to which the agent replied that there were none, the policy had been canceled, such a ruling would be erroneous, as this testimony is relevant on the question of whether the plaintiff complied with § 12 of the policy relative to his duties when loss occurs. In Phenix Insurance Co. v. Searles, 100 Ga. 97 (4) (27 S. 779), it was held: “A statement made by such an agent to the insured, within the time during which the latter, under the' terms of the policy, was allowed to furnish рroofs of loss, that the company declined or refused to pay the loss, will amount to a-waiver of such proofs.” Since the defendant insurancе company, through its agent Price, declined to pay the loss on the ground that, the policy had been previously canceled, such refusal amоunted to a waiver of the requirement in the policy relating to proof of loss. Further, it must be remembered that the plaintiff had never seen the policy and therefore had no possible way of knowing, unless informed by Price, what his duties were in this regard.
The trial court erred in granting the motion for a nonsuit becausе there was evidence making it a question of fact for the jury as to whether the policy sued upon had in fact been canceled previous to the date of the collision.
Judgment reversed.