Page:Federal Reporter, 1st Series, Volume 2.djvu/442

 POOB ». HUDSON INS. 00. 435 �be cancelled without a re-insurance, and as the Hudson Com- pany did not re-insure they cannot insist upon the cancella- tion. There was no agreement of parties. 1 Parsons on Contracte, 6. �There was a stipulation in the policy that the defendant Company might terminate the insurance "at any txme, on giving notice to that efîect, and refunding a ratable propor- tion of the premiums;" and the defendant's counsel insist that Craig, in writing to Eeed Bros., had this provision in his mind, and aoted in reference to it. This may be so. But hefore he could have the beneût of that stipulation, even if acting upon it, he should have conformed to it, and given notice, and returned the required part of the premium. This he did not do. �The counsel for the defendant requested the court to in- Btruct the jury that the letter of Craig contained a proposi- tion to cancel or reduee the Hudson policy, and that this was made by him as the agent of that company; but that the proposition to re-insure in the Lancashire company was made. by him (in the letter) as the agent of the Lancashire com- pany, and that the letter of Eeed Bros, was an acceptance of the proposition of the Hudson Insurance Company to cancel the policy, without including the other, to re-insure. Th» court declined so to instruct, and properly. �It was a question of fact and not of law whether Craig acted as the agent of one company or the other, or both ; and if Craig was the agent of the Lancashire company in ofiEering to procure a re-insurance, it can make no difference, because Eeed Bros., in accepting the proposition to cancel the Hudson company's policy, coupled it with a re-insurance of the prop- erty in the Lancashire company, which was not done by Craig, whether as agent of one company or the other. �In support of the second ground of defence, that the hôtel had not been occupied as agreed in the policy it should be, to-wit, that a family should live in it throughout the year, there was evidence tending to show that the house was occu- pied as a hôtel in the summer, but not at other seasons; that the defendant's agent, at the time of the insurance, knew the ����