170 Mo. App. 85 | Mo. Ct. App. | 1913
This is an action on a policy of fire insurance of $1200 covering a store building owned
The contract provided that “this policy shall be cancelled at any time at the request of the insured; or by the company by giving five days ’ notice of such cancellation. ’ ’
The subject of cancellation arose between the parties early in March, 1912, in a letter written by defendant’s agent at Milan to plaintiff D. A. Payne who, at the* time, was temporarily in Colorado Springs, Colo. Neither the letter nor a copy could be found at the time of the trial and the only evidence of its contents is in the testimony of Mr. Payne who stated that the agent informed him “that the company wanted to cancel the policy and he wanted to know where the policy was.” The answer to this letter which was written and mailed at Colorado Springs, March 4,1912, was as follows:
“Mr. W. J. Wattenberger, Milan, Mo.
“Dear Sir: Yours regarding cancelling insurance on Depot Restaurant Bldg, at hand and in reply will say I am very much surprised at this, and I hardly know what to say. I don’t see any reason for cancelling as it is all paid up for a year from the time of insuring it. Now if the company won’t carry it any longer and you can place it in any other good company for the unexpired time without any further expense to me you can do so. The policy is in charge of the Sullivan Co. Bank. You can see Nova Payne*87 and lie will show yon the policy. I don’t see any need of changing policies and hope yon won’t have to. Please let me hear from yon at once and oblige.”
Payne returned to Milan and was informed by the agent that he could not find the policy at the Sullivan County Bank. Payne replied that the policy certainly was at the bank. The agent suggested that it might be at Payne’s house and Payne then promised to search for it and the agent agreed to change the insurance to another company. This conversation occurred on or about March 23d and in its course the agent stated that the old poliqy “stands till we can get it changed, if any loss.” Payne did not find the policy and nothing further was said by the parties on the subject of cancellation until after the’loss. Defendant did not offer to return the unearned premium.
To effect a cancellation of the policy before the end of the term for which it was issued, defendant was required by the contract to give plaintiffs “five days’ notice of cancellation.” Such notice to be valid necessarily should have expressed a clear and unequivocal action of defendant on the subject of cancellation and not a mere purpose or intention to take such action at some future time. As we said in Banking Co. v. Ins. Co., 75 Mo. App. 314: “The effect of a cancellation being an option of one party to bring to an end a contract for the protection of another, the action taken to that end must be unequivocal and not such as may be a subject of misinterpretation. It must not depend upon a future event, but must be a present purpose carried out, so that the policy is can-celled at the time the cancellation could become effective under the contract.” [See, also, Gardner v. Ins. Co., 58 Mo. App. 611; Iron Co. v. Ins. Co., 127 N. Y. 608; Elliott on Insurance, sec. 300.]
But defendant, to accomplish a cancellation of the policy — a rescission of the contract — at the end of the
But counsel for defendants urge that plaintiffs ratified and consented to the cancellation and thereby waived performance by defendant of the conditions we have been discussing.
The letter-written in answer to. the alleged notice certainly does not disclose any thought of. the writer of terminating the contract by mutual consent. Manifestly the writer construed the alleged notice as we have construed it, viz., as being not a formal and legal notice of rescission but as an expression of an intention to act in the future and, treating the subject as still open to argument or negotiation, attempts to dissuade defendant from carrying out its expressed purpose. The sentence, “Now if the company wont carry it any longer and you can place it in another good company for the unexpired time without any further expense to me, you can do so,” instead of suggesting the idea of an immediate cancellation by mutual consent, conveys the opposite meaning that the' writer
The agent did not act in a dual capacity but throughout the entire transaction was the agent only of defendant. As we have stated the substance of plaintiffs’ alternative offer to defendant was to accept a policy in another company in place of the old policy should defendant conclude to assert its right to rescind. In such case defendant would have had the option of procuring the new policy or of tendering the unearned premium in money and the acts performed by the agent in giving effect to either course could not have been regarded in any other light than as acts, performed in defendant’s service. The defense of cancellation finds no support in the evidence.
An objection of defendant to the instruction given the jury finds conclusive answer in the case of Van Bushirk v. Railroad, 131 Mo. App. 357.
The judgment is affirmed.