(after stating the facts). Appellees, Gage & Co., were entitled to five days’ notice of cancellation. Recognizing this, the insurance company instructed its agent “to cancel" the policy, not that the policy was cancelled; showing that the cancellation of the policy was to be effected by their agent in the future. The letter of the agent, Johnston, to the holders of the policy, in which he says, speaking of the policy: “I want it mailed to Dawson, that he may take cancellation receipt, and forward to me; as soon as cancelled, I will refund to you your y5ro rata of premium paid,” — shows that the agent understood that the policy would not be cancelled until it had reached the assured, Williams. Tikewise his letter to Dawson, where he says: “I have this day written them to mail it to you at once by first mail, and I suppose it will reach you by Monday or Tuesday. When it does, please get Dr. Williams’ receipt for cancellation, and mail to me by first mail.” Gage also .understood that the policy-would not be cancelled until it reached Williams. Indeed, the letters of the agent are not susceptible of any other construction. Dawson, the agent at Haynes, to whom the policy was mailed, did not receive it until after the loss; and, of course, he could not have delivered it to Williams before he received it. We conclude that the undisputed facts show that the policy was not can-celled before the fire. Griffey v. N. Y. Cent. Ins. Co., 100 N. Y. 417.
The insurance agent, Johnston, seems to have reached this conclusion, for he promised in his letter to Gage & Co. to refund the fro rata premium paid by them “as soon as the policy was cancelled,” and his effort to refund was not until after the fire.
Notice to the assured and the refunding of fro rata premium for the unexpired term are usually conditions precedent to the cancellation of insurance policies, and, being for the benefit of the assured, may be waived by him. Kirby v. Ins. Co., 13 Lea, 340. But, having found that there was no cancellation previous to the fire, the question of waiver of the conditions does not arise.
The judgment is correct, though the instructions in some respects are erroneous.
Affirm.