Mueller v. South Side Fire Ins.

Mr. Justice Trunkey

delivered the opinion of the court,

Mueller’s policy was for the term of three years from the 15th September 1874, for a premium of $180. It contained a stipulation that for any cause “ it shall be optional with the company to terminate the insurance after notice given to the assured or his representative, of their intention to do so; in which case the company will refund a rateable proportion of the premium.” This provision was also inserted, to wit: “Loss, if any, payable to the Rochester Building Association, No. 2, as theirinterest may appear.” The said association took and retained possession of the policy until after the fire. Mueller gave his note, dated September 22d 1874, at three months, for the premium, which was protested for non-payment. On the 19th March 1875, the company cancelled the policy and served notice on its holder as follows : “You are hereby notified that policy No. 1644, issued to John Mueller by this company, on the 15th of September, is hereby cancelled for non-payment of premium.” To this no response was made. The property insured was destroyed on the 14th of December 1875.

Notice of cancellation was requisite upon Mueller or his representative, not on both. No one could better answer as representative than he who had the custody of the policy and would be entitled to the money in case of loss. The notice was sufficient, and the cancellation took effect from the service. Had the premium been tendered and refused, within a reasonable time, a question might exist which is not now in the case. There was no offer to pay. It is said the policy remained valid because the company did not refund a rateable proportion of the premium. Non-payment of the premium was the very cause of cancellation. Refund what ? The evidence of a broken promise to pay ? The company had received no money. No legerdemain could make that protested note appear as cash. Mueller had no right to the note until payment of the proportionate part due-when the policy ended. It was his paper, received and held by the company, between them a mere contract subject to any legal or equitable defence. The insured has no just ground for complaint. Eor three months his note stood as if a payment of the premium; for three months longer the policy was permitted to continue in force; and for nine months after the cancellation he was content. At no time did he tender or offer to pay a dollar for restoration of the policy. Too often insurance companies set up technical and trifling defences against payment of losses; but that is no reason for holding a policy valid after its cancellation according to the terms of the contract, and a long neglect by the insured to pay the stipulated price for the insurance.

Another point may be noticed. The ninth condition of the insurance provided that the loss should not be payable until the production of a certificate of an officer as therein directed. It is alleged that production of the certificate was waived. Let it be conceded that Lafferty was duly authorized to act for the company. Also that silence under many circumstances may be evidence of a waiver. As where payment is refused for a specified cause; or where a defect is pointed out in proofs and certificates; or where, after receipt of proofs, the company act upon them as if correct in treating with the insured; or where the company resort to and agree upon another mode of ascertaining the loss; waiver as to a defect, not the ground of objection, refusal or action, may well be inferred from silence. But where no word or act has been said or done by the assurer to mislead the insured or throw him off his guard, mere silence is not enough to infer waiver: Beatty v. Lycoming Co. M. Ins. Co., 16 P. F. Smith 9. Mueller left the papers with Lafferty’s wife, and he received them from her. There was no communication between them, orally or in writing. Lafferty did nothing. There was no evidence of waiver to submit.

Judgment reversed.