I dissent from the reversal of this judgment. I think upon the conceded facts that the defendant repudiated the contract and refused further to comply with its provisions and-that thereby the plaintiff became entitled to recover. The fact that the plaintiff had made a claim based upon an incorrect construction of the contract as to policies issued in place of policies canceled did not justify the defendant in refusing to comply with the contract. I do not understand that the “ defendant was thus placed in a position of then either acquiescing in the construction which the plaintiff put upon the contract, or else, if the contract were to be so construed, repudiating it.” The defendant could insist upon its construction of the contract, leaving the plaintiff to recover if he could the price agreed to for the policies taken out in place of those that had been canceled, but such a claim by the plaintiff did not, as I view it, justify the defendant in repudiating the contract.
I think the judgment should be affirmed.
Exceptions sustained and new trial ordered, costs to defendant to abide event.