concurring.
Maryland’s policy insured Dan River against the Walker judgment if there was no other collectible insurance available to Dan River. Maryland’s present right to recover from Aetna depends on whether at the time Maryland assumed payment of the judgment, June 25, 1947, Dan River could have collected from Aetna if Dan River had paid that judgment.
Dan River could not then have recovered from Aetna because it had not complied with the terms of its Aetna policy by giving Aetna the required notice of the Walker claim and of the institution of the Walker suit. It had not done that because it gave notice of the claim to Maryland and Maryland had accepted liability and taken charge of the suit. It thereby allowed Dan River to believe that it was protected by Maryland and left no reason for Dan River to suppose that it was necessary to take any steps to hold Aetna. Therefore, due to Maryland’s course of action, Dan River had no collectible insurance in Aetna, and Maryland was obligated by the terms of its policy to pay the judgment.
While Catlin wrote both policies, and was agent for both companies, Dan River expressly dealt with him as Maryland’s agent, claiming protection under Maryland’s policy. Catlin acted as Maryland’s agent, Maryland recognized him as its agent, made no claim that there was any mistake in what he did, and did not question its liability until too late for Dan River to hold Aetna.
Under these circumstances I think it proper to hold that *236Maryland paid its own debt when it paid the Walker judgment.
Spratley, J., concurs in this opinion.