Page:United States Reports, Volume 209.djvu/356

 330 (JTOBER TERM 1907. Argument for Plaintiff in Error. 209 U.S. County, 151 U.S. 462, 463; 2 Parsons on Contracts (7th ed.), 626, 632. The language of paragraph 11 of this contract is neither technical nor ambiguous nor have any of the terms therein used "acquired a meaning district from the popular sense of the same terms." They must, therefore, be taken and understood in their plain, ordinary and popular sense. The words "and in no event," in their plain, ordinary and popular sense, include and refe/- to insolvency as clearly as though that word were visibly written in the contract. This contract provides that "in no event shall this company be liable for an amount in excess of a ratable proportion of 'the sum, actually paid,!' not a ratable proportion of the loss. The. liability of the reinsuring company .being clearly and ex- presely fixed by the terms of the contract, the court will not enlarge it. Kerr on Ins., 729, 735; Imperial Ins. Co. v. Coos County (supra). The moment the reinsured accepted the contract in this case it assumed and took upon itself the duty of performing a certain definite act by which, and by which alone, the tent and measure of the liability of the rciusuring company could be ascertained in the event of a loss..The reinsured, by its acceptance of this contract, agreed that "actual pay- ment" by it of its losses should be a condition precedent to its fight of re.ovcry against the reinsuring company. Lang- dell on Contracts, �; Ostrander on Insurance, �4; Kerr on Insurance, 740; Braunstein v. Ins. Co., I Best & S. 728. The insolvency of the reinsured was an event the happening of which could have been provided against by the terms of the contract. There t:eing no such provision in the contract, 'it must be conclusively presumed that the parties had that event;as well as all others, in mind when they agreed that "in no event" should the reinsuring company be liable for an amount in xcese of ratable proportion of the sum actually paid, etc.. �The fact tKat performance of this condition precedent is

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