I concur in the conclusion that as between the plaintiff and the insurance company the premium in question was paid before the fire occurred. When the agents in the ordinary course of their business with the plaintiff gave him credit, he no longer owed the company but owed them the amount of the premium.
Cancellation of the policy was authorized "at any time at the request of the assured, or by the company by giving five days' notice." In either event, as the contract further provided, "the premium having been actually paid, the unearned portion shall be returned on surrender of this policy." Whether the insurer or the insured is the actor in the attempt to cancel, cancellation is not complete until the unearned premium is returned. (Tisdell v. New Hampshire Fire Ins. Co., 155 N.Y. 163, 165.) If the insured is the actor, the surrender of the policy and the return of the premium are concurrent acts. If the insurer is the actor, the notice and the return of the premium are sufficient, for the insured might be unwilling to surrender the policy. If, however, after the insurer has given the notice, the policy is surrendered by the insured, return of the premium must be made concurrently, or, if the surrender is by mail, as soon as practicable, unless such return is duly waived. In the case before us the company treated the act of surrender and the act of returning the premium as concurrent in the notice served by its agents, for they therein requested him "to return said policy to this office, when the unearned premium, if any be due, will be returned to you." Pursuant to this notice, the insured mailed the policy to the agents without instructions or comment, and the premium had not been returned or tendered when the *Page 406 fire occurred, although there was both time and opportunity to do so.
Under these circumstances, is the question of waiver one of fact or law? The learned referee treated it as one of fact, for he found that "the unearned premium (being the sum of $19.30) was not paid or tendered to the plaintiff before the fire, and the plaintiff did not at any time waive such payment or tender." In his opinion he gave his reasons in part for so finding as follows: "Presumptively the return of the policy to Becker and Company was in compliance with the request in the notice, in order to obtain the unearned premium, and was not an assent to a cancellation without the performance by Becker and Company of what they had expressly offered to do in the notice. No intent of that kind can properly be inferred."
As, according to the policy, surrender and return are concurrent acts so far as practicable, in the absence of evidence to the contrary the former is presumed to be made upon the condition that it shall not take effect until the latter is performed. While the surrender was voluntary it was not volunteered, for it was made upon the request of the company contained in a notice of intent to cancel, and accompanied with the statement that the premium would be returned "when" the policy was returned. The policy was returned, but the premium was not, although the agents had an interview with the plaintiff after the surrender and before the fire. Moreover, at that interview the agents expressly agreed to hold the policy until it was placed in another company. It was not placed in another company, but held by the agents until after the fire, when it was sent to the defendant.
In my opinion there was no waiver as matter of law, and the referee having found upon sufficient evidence that there was no waiver as matter of fact, the judgment should be affirmed.
CULLEN, Ch. J., O'BRIEN, HAIGHT and HISCOCK, JJ., concur with EDWARD T. BARTLETT, J.; CHASE, J., concurs with VANN, J.
Judgment reversed, etc. *Page 407