
    Martin Lipman, as surviving partner, Resp’t, v. The Niagara Fire Ins. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    1. Insurance (tire)—Acceptance op risk—Force op “binding slip.”
    The “ binding slip” issued by an agent pending the issuance of the policy is a mere memorandum to identify the parties to the contract, the subject matter and the principal terms. It refers to the policy to be issued,, and is to be construed as though it had expressed that the present insurance1 was under the terms of the usual policy of the company to be thereafter delivered.
    2. Same—Notice to terminate.
    This would include a condition in the policy that the company might terminate the policy by notice to the “ person who procured the insurance,” and notice to the brokers who procured the insurance would rbe a good notice.
    3. Same.
    The notice was given at half-past twelve, and at three o’clock the property was burned. Held, that the cancellation of the risk, under the circumstances, was effected at the time of the service of the notice.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff rendered on verdict.
    On the 2d of September, 1885, plaintiffs instructed certain insurance brokers to procure insurance on their property. The. brokers took what is known as a binding slip to the defendant, which was accepted by them and which was as follows:
    “Pell, Wallack & Co., Insurances, 55 Liberty street
    “ Mew York, September 2, 1885.
    “The undersigned do issue'for account of Shaped Seamless Stocking Co., amounts specified below at one and one-quarter for twelve months from September 2, 1885, on machinery and stock, building Mo. 3 (as per form, building situate Randall’s Island, M. Y.) This receipt binding until policy is delivered at the office of Pell, Wallack & Co.
    
      
    
    T. J. Temple & Co., C.
    Accepted by Pollock. Yallette for M.”
    The brokers upon receiving the binding slip immediately sent it to their principals in this action, and it remained in their possession until the day of the fire.
    
      The fire took place on the 3rd of September at three o’clock in "the afternoon. On that day, and at half-past twelve o’clock, the company sent to the brokers a notification that they did not want to write the risk, and the brokers thereupon sent a boy in their employment to ascertain why the defendants did not want to take the risk. He was also instructed to tell the clerk in charge that the brokers had not the binding slip, but would try to replace the risk that afternoon; and when the boy came back he said all right, and the brokers thereupon tried to get the insurance elsewhere.
    
      Robert W. Re Forest, for app’lt; Adolph L. Sanger, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 231.
    
   Andrews, J.

The binding slip signed by the defendant was not a mere agreement to insure, but was a present insurance •to the amount specified therein. The instrument1 is informal It states on whose account the insurance is made, the property covered, the amount insured, the term of insurance and the date. But it does not specify the risk insured against, nor does it •contain any conditions such as are usually found in insurance policies. The evident design of the writing, as disclosed by the testimony, was to provide temporary insurance pending an inquiry by the company as to the character of the risk, or, if that was known, during any delay in issuing the policy.

The secretary of the defendant signed the binding slip upon the solicitation of Pell, Wallack & Co., insurance brokers of the plaintiffs, in the afternoon of September 2, 1885. The officers of the defendant having made inquiry as to the risk, notified the plaintiffs’ brokers before one o’clock on the afternoon of September 3rd that the defendant declined it. The property described in the binding slip was destroyed by fire in the afternoon of September 3rd, the fire having commenced about three o’clock.

The claim on the one side is that the binding slip was a complete and perfect contract, binding the defendant, according to its language, “ until policy is delivered at the office of Pell, Wallack & Co.,” and not terminable therefore by notice prior to that time, or if so terminable, then only upon reasonable notice, which, as is claimed, was not given, nor in any event upon notice to the plaintiffs’ brokers, they not being agents of the plaintiffs for the purpose of receiving such notice.

It is insisted on the other side that the contract evidenced by the binding slip was a contract subject to the conditions contained in the ordinary policy in use by the company, one of which contained the following clauses:

“ This insurance may be determined at any time by request of the assured, or by the company, on giving notice to that effect to the assured, or to the person who may have procured this insurance to be taken by this company.”

The notice given on the 3rd of September prior to the fire terminated, as is insisted, the contract of insurance pursuant to this condition. We think there can be no doubt that the true construction of the binding slip only obligated the defendant according to the terms of the policy in ordinary use by the company. There is no other reasonable interpretation of the transaction. The binding slip was a short method of issuing a temporary policy for the. convenience of all parties, to continue until the-execution of the formal one. It would be unreasonable to suppose either that the brokers expected an insurance except upon the usual terms imposed by the company, or that the secretary of the company intended to insure upon any other terms. The right of an insurance company to terminate a risk is an important one. It is not reserved in terms in the binding slip and could not be exercised at all so long as no policy should be issued, unless the condition in the policy is deemed to be incorporated, therein.

Upon the plaintiffs’ contention the company could not cancel the risk so long as the binding slip was in force, and the only remedy of the company to get rid of the risk would be to issue-the policy and then immediately cancel it. The binding slip was a mere memorandum to identify the parties to the contract, the subject matter and the principal terms. It refers to the policy to be issued. The construction is, we think, the same as though it. had expressed that the present insurance was under the terms of the usual policy of the company to be thereafter delivered.

The trial judge was of opinion that the binding slip was not a complete and independent contract of insurance subject to no conditions, but he ruled that the obligation of the defendant was to be determined by the question, whether the condition in the defendant’s policy, that the company might terminate the policy by notice to the “person who procured the insurance,” was a usual one, and submitted the case to the jury on that issue.

The case of De Grove v. Metropolitan Ins. Co., 61 N. Y., 594, is we think a decisive authority against the view of the learned trial judge. The general term dissented from the ruling of the trial judge on this point and held that notice to Pell, Wallack & Co., the brokers who procured the insurance, was authorized by the-condition in the policy. It, however, sustained the judgment on the ground that notice did not terminate the contract until a reasonable time had elapsed after it was given and that the two and a half hours which intervened between the notice and the happening of the fire was not such reasonable time and that consequently the insurance was then in force.

We think there can be no reasonable doubt upon the language of the condition that notice to the brokers was a good notice, and that if otherwise sufficient, it terminated the defendant’s liability. The brokers procured the insurance. In fact their duties in respect to it had not terminated. The binding slip provided that the policy when issued should be delivered at their office. The notice was given to persons to whom notice might be given by the-express language of the policy, The special language of the condition in the defendant’s policy upon this point was, it is said,, inserted to meet the objection pointed out by this court in Hermann v. Niagara Ins. Co., 100 N. Y., 415.

It remains to consider whether under the condition the policy terminated eo instanti on notice by the company. There is no language which postpones the effect of notice until the lapse of a reasonable time thereafter. The rule is well settled that where a person undertakes to do an act upon notice from another, it is implied that he shall have a reasonable time after he is called upon to do the thing, or render the service, and no time for performance being specified, the law gives him a reasonable time. But where a contract fixes the time of performance, the rule of reasonable time has no application. We have been referred to no case, nor have we found any, which sanctions the doctrine that where one has assumed an obligation which is to continue until notice given to the other party, the obligation continues after notice.

If in this case the premium had been paid beyond the period when notice was given, then the bare notice would not have terminated the risk. But this, for the reason that the company is bound in such case, in order to terminate the policy, not only to give notice, but to refund, or offer to refund, the insurance premium. This is the construction placed on clauses like the one in question. The cancellation in such case only takes place on notice and return of the premium for the unexpired term. Van Valkenburgh v. Lenox Fire Ins. Co., 51 N. Y., 465 ; Wood on Fire Ins., § 106, and cases cited.

The privilege reserved by the company to terminate the policy on notice cannot be exercised under circumstances which would make it operate as a fraud on the insured, as in case of notice given pending an approaching conflagration, threatening to destroy the property insured. Home Ins. Co. v. Heck, 65 Ill., 111.

In the present case no premium had been paid. The notice was given in good faith. There was no special emergency at the time. It was given during business hours, in ordinary course.

The contract provides that it should be terminated on notice. ' We perceive no reason why the contract should not be construed according to its terms. The parties might have provided that the risk should be carried by the company after notice for a reasonble time, to enable the insured to place it elsewhere. But they did not do so, and even if a custom of that kind had been proved, which was not, it would have been inadmissible to change or extend the explicit language of the contract. We think the cancellation was effected at the time of the service of the notice. See Mueller v. Southside Fire Ins. Co., 87 Pa., 399; Grace v. American Cent. Ins. Co., 16 Blatch., 433, but reversed on another point, 109 U. S., 278.

The judgment should, therefore, be reversed and a new trial granted.

All concur.  