
    Mississippi Fire Association v. William H. Dobbins.
    Fire Insurance. Breach, of condition. Return of premium.' Waiver.
    
    A fire insurance company, which after loss receives the full premium and without returning any part of the same, defends on the ground of a forfeiture for breach condition as to other insurance taken without its consent, is liable under a policy providing that the company should return the unearned premium if either party should cancel the policy and that if the policy should be canceled or become void, the unearned premium should be returned, the company retaining the customary short rates, except that when the policy should be canceled by the company by giving notice it should retain only a pro rata premium.
    From the circuit court of Perry county.
    Hon. John R. Enochs, Judge.
    The appellee, Dobbins, was plaintiff, and the appellant, the Mississippi Fire Association, defendant, in the court below. This action on his policy for the loss sustained by the appellee, Dobbins, was defended on the ground that he had taken out other insurance on the same property subsequent to taking out the policy sued on, without the knowledge or consent of the defendant company, and in violation of the terms of the contract of insurance, which rendered the policy sued on void. The case.was tried before the court without a jury, both parties waiving a jury. The evidence for defendant was that the policy sued on was issued in July, 1901, and the premium paid to the company on September 1, 1901, by the local agents, and the fire occurred October 23, 1901, and plaintiff came into the office of the local agents October 24th (the next day after the fire) and notified them of the fire, when he (plaintiff) was told that the premium had not been paid by him, and the premium was then paid to the local agents, and for the first time the agents found out that Dobbins had another policy on the same property, the agent testifying that he did not recollect whether it was before or after the premium was paid that Dobbins informed him of the existence of the other policy. The agent also testified that he then told Dobbins that the taking out of the other policy avoided the policy sued on, but that he would send in the report of it to the company. Plaintiff testified that he informed the local agents of the fire on the 24th of October, and then informed them of the other policy, and went back the next day and paid the premium, and got a receipt. The insurance company never returned or offered to return, any part of the premium. The clause of the policy relating to the cancellation of policies and return of premiums is set out in full in the opinion of the court. The court rendered a judgment for plaintiff for the full amount of the policy.
    
      N. O. Hill, for. appellant; Ellis <& /Suttivwi, for appellee.
   Whitfield; C. J.,

delivered the opinion of the court.

It is perfectly manifest that the judgment in this case is correct, from the very terms of the contract as to cancellation. The policy is much broader than the one in the case of Mississippi Home Ins. Co. v. Dobbins (this day decided), 33 So., 504, and to the opinion in which case reference is made, in respect to the duty of the appellant to return the unearned premium. Here the policy not only requires the appellant to return the unearned part of the premium in case either party cancels, as either might, but expressly provides, ‘ ‘ If this policy shall be canceled, as hereinbefore provided, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy, or last renewal; this -company retaining the customary short rates, except that, when this policy is canceled by this company by giving notice, it- shall retain only pro rata premiums. ’ ’ The appellant, instead of conforming to the terms of the contract, says the policy is void, and yet holds onto all the premium. See authorities cited in Home Insurance Co. v. Dobbins—specially Joyce on Insurance, vol. 3, sec. 2486, and Schreiber v. German-American Hail Ins. Co., 43 Minn., 368, 45 N. W., 708.

Affirmed.  