
    Springfield F. & M. Ins. Co. v. McKinnon & Call.
    (Case No. 4877.)
    1. Insurance.— A policy of insurance which in terms provides that the insurance may be terminated at any time at the option of the company, is avoided from the time when the insured has notice that the proper local agent has received the company’s instructions that it would no longer be liable.
    ■2. Same.— In such case direction to the agent to cancel the policy is, when communicated to the insured, as effectual to terminate the risk as would be the most express notice that the policy had been terminated; following Bergson v. Builders’ Insurance Co., 88 Cal., 541, and other cases.
    -3. Same — Agreement of agent.— After a knowledge of the company’s instructions to terminate the risk, an agreement with the agent to continue it would not bind the company.
    Appeal from Hill. Tried below before the Hon. D. 0. Bolinger, special judge.
    
      S. C. Upshaw, for appellant,
    cited 5 Am. Rep., p. 64; Anson on Contracts, p. 335; 17 Tex., 675; Story on Ag. (5th ed.), sec. 224;. id., sec. 264, p. 313; id., sec. 170; 1 Parsons on Contracts (5th ed.), p. 42; 1 American Reports, p. 262; 12 id., 579.
    
      Maxey & Fisher, also for appellant,
    cited May on Ins., 406, secs. 340, 434, 361; Flint v. Ins. Co., 8 Ohio, 501; Bergson v. Ins. Co., 38 Cal., 546; Emmott v. Slater, etc., Ins. Co., 7 R. I., 563; Albany City Ins. Co. v. Keating, 46 Ill., 395; Fabyan v. Ins. Co., 33 N. H., 203.
    
      McKinnon & Call and R. B. Tarlton, for appellees,
    cited Provident, etc., Ins. Co. v. Fennell, 49 Me., 180; Tungstrass v. German Ins. Co., 48 Mo., 201; Societe de Benefaciance, etc., v. Morris, 24 La. Ann., 347; Bondie v. Exchange Fire Ins. Co., 51 N. Y., 117; 52 Mo., 469; Latoix v. German Ins. Co., 27 La. Ann., 113; Hollingsworth v. German Ins. Co., 45 Ga., 294; Van Valkenburgh v. Tarax Fire Ins Co., 51 N. Y., 465; Chase v. Phoenix Ins. Co., 67 Me., 85.
   Stayton, Associate Justice. —

The policy upon which this action was based was delivered to Golledge, the party insured, on the 10th day of July, 1882, and contained the following clause: “ This insurance may be terminated at any time at the request of the assured, in which case the company shall retain only the customary short rates for the time the policy has been in force; the insurance may also be terminated at the option of the company, on giving notice to-that effect and refunding a ratable proportion of the premium for-the unexpired term of the policy.”

The premium was not paid, it being the custom of the agent to collect the same on the first of the month succeeding the delivery of the policy, of which nothing was said at the time the policy was delivered.

Having received instructions from the company to terminate the insurance and cancel the policy, on the 18th or 19th day of July, 1882, the agent of the company notified Golledge of that fact, at which time Golledge asked the agent if he could not transfer the-policy to another house to which he contemplated moving, to which the agent replied that the company declined to take risks in that row. Golledge then asked the agent if he could not rewrite him in another company, to which he replied that he could not, upon which Golledge requested the agent to permit the policy to stand for a few days. The agent consented to let the policy stand until the succeeding Saturday, which was the 22d day of the month, ah which time the agent terminated the insurance upon his books, of which fact he sought to give notice to Golledge, and for that purpose called at his office several times, but failed to find him.

The" property was destroyed by fire on the night of the 27th July, 1882, and on the 31st of that month the premium was tendered to the agent, who declined to receive it. The policy was transferred toappellees on the same day.

The policy giving to the company the power to terminate its risk,, the notice given to Golledge of the instructions which the agent had received fully evidencing the intention of the company no longer to assume the risk, terminated its liability;

Direction to the agent to terminate the risk and cancel the policy was, when communicated to the assured, as effective as would have* been the most express notice that the policy had been terminated: for it notified the assured that the company would not consent to be longer bound. Einmott v. The Slater Mutual Fire Insurance Co,, 7 R. I., 563; Bergson v. Builders’ Insurance Co., 38 Cal., 541; Fabyan v. Union Mutual Five Insurance Company, 33 N. H., 203.

If, after Golledge received notice of the instructions to the agent, lie had made an agreement with the agent to continue the policy in force, such an agreement would not have been binding upon the company. Hartford Fire Insurance Co. v. Reynolds, 36 Mich., 507. It is a familiar rule in the law of agency, that, however general may be the powers of an agent, when his powers are revoked in regard to a particular matter, his contracts are not binding upon his principal, if such revocation is known to the person who subsequently deals with the agent in reference to that matter. Story on Agency, 224. The loss in this case occurred, however, after the time to which the agent had agreed to extend the policy, and no notice subsequent to that time could in any event have been necessary.

The premium not having been paid, there was no necessity to refund prior to the cancellation of the policy, in order to confer the right to terminate the risk. It is unnecessary to consider what •effect upon the rights of the parties the fact that no premium whatever had been paid might have.

As the cause was tried without a jury, such judgment will be here rendered as the district court ought to have rendered upon the evidence, which will be that the appellees take nothing by their suit, and that the appellant recover all costs in the court below and in this court.

Judgment reversed and rendered.

Reversed and rendered.

[Opinion delivered May 29, 1883.]  