dissenting.
I respectfully dissent.
I would affirm the trial court’s summary judgment in favor of appellee. Appellant does not dispute appellee’s affidavit stating payment of the insurance premium was mailed to the insurance company on October 22, 1985. Appellant argues failure to receive payment by October 23, 1985, operated to cancel the policy. Appellant’s focus on receipt of payment is relevant only if the mailbox rule does not apply. The summary judgment proof makes it clear that the mailbox rule will apply in this case.
The mailbox rule would not apply if there were an express provision in the contract specifying another manner of payment. Corbin on Contracts § 78.00 (1952). Here the insurance contract is silent as to method of payment. It is conceded that mailing the premium before the last day for payment is not, by itself, sufficient to consti*541tute timely payment under the mailbox rule; however, the insurance company representative who handled Conn’s policy with the company, Mr. Ed Weeren, stated in his deposition that payment was authorized by mail. Appellee’s previous premium payment had been mailed to the company, and the company had accepted that method of payment. Where the usual course of dealing establishes that a creditor permits payment by mail, then the mailbox rule will govern the time when payment is deemed to have been made. Fant v. Miller, 218 S.W.2d 901, 903 (Tex.Civ.App.1949, writ ref’d n.r.e.) (where payment of insurance premiums by mail is authorized, “performance is completed when a letter containing the remittance ... is deposited in the mail.”). The course of dealing between Conn and the insurance company had been to transmit premium payments by mail. The mailbox rule operates to make the day Conn mailed the payment the effective date of payment.
The majority states the summary judgment proof was insufficient as a matter of law because an affidavit of an interested party concerning a matter about which adversaries have no knowledge or ready means of confirmation does not conclusively establish the facts required to support a summary judgment. However, Conn’s affidavit swearing that he deposited his check in the mail properly addressed, postage paid, to appellant prior to the cancellation date is a matter which the company could have confirmed or refuted. See Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 856-857 (1942) (discussing the manner in which an insurance company sought to show that a letter was not received). Here, appellant has chosen a system of having premium payments sent directly to a box at a banking institution. The bank removes the company’s mail from the box and credits payments received to the insurance company account. The envelopes in which the payments are received are destroyed and no notation is made by the bank of any postmark or other evidence of the mailing. This decision of the appellant insurance carrier, permitting destruction of any evidence it may have to either confirm or refute an adversary’s affidavit concerning the mailbox rule, should not be used to the carrier’s advantage in its effort to escape its obligations under the policy.
Assuming arguendo, the affidavit of ap-pellee was one which adversaries have no ready means of confirming or refuting, appellant judicially admitted in its reply to the motion for summary judgment that there were no material fact issues on which a fact finder must pass. In its motion, the insurance company adopted appellee’s affidavit with the following:
* * ⅜ * * *
“The summary judgment evidence set out below and attached hereto establishes conclusively that there is no genuine issue as to the facts set forth above ...
******
The pleadings, depositions, and interrogatories on file in this case, together with [other summary judgment evidence], and the Affidavit of [Conn] ... all establish that there are no genuine issues of material facts [sic] in this case ...”
******
I find nothing “oblique,” as described by the majority opinion, about the above statements made by appellant in his reply to appellee’s motion for summary judgment. Appellant deliberately, clearly and unequivocally asserts the absence of any factual dispute. The judicial admission made by the appellants adoption of Conn's affidavit, and the statement by the appellant that there were no material fact issues are conclusive, as a matter of law, of the facts set forth in appellee’s affidavit.
It is clear that the insurance company received appellee’s payment of the full premium for the balance of the policy, cashed the check for the full amount and made no attempt to refund the “unearned” premium until after it received notice of the loss. This subsequeht attempt to refund the “unearned” portion of the premium appears to be a convenient attempt by the insurance company to avoid its contractual obligation. When appellant received appellee’s payment of the full premium for the balance of the policy term, with the intent to accept it *542only for partial payment of premium to October 23, 1985, the alleged date of cancellation, appellant should have immediately notified appellee of such action so that appellee could have obtained other insurance. By waiting from October 29 until November 8,1985, some five days after the accident occurred, appellant prevented ap-pellee from obtaining other automobile insurance protection. Such action by an insured is prejudicial, and unfair to appellee.
For these reasons, I dissent and would affirm the trial court’s summary judgment in favor of appellee.