One of the by-laws of a mutual fire insurance company, annexed to and made a part of its policies, provided, amongst other things, that it should "be optional with the company to terminate the insurance after seven days notice given to the insured, or his representative, of their intention to do so," in which case, they were to refund a ratable portion of the premium. In winding up the affairs of the company, under a company vote to that effect, the directors and their committee, ordered, that the class of policies which included the plaintiff's should be cancelled on the 15th February, "or as soon after the date named as shall be found practicable, allowing for due notice to all parties, and reasonable time to procure new insurance." On the evening of the 13th February, but after the closing of the post-office, a notice, directed to the plaintiff, was deposited in the post office, informing him that all policies of the class of his would be cancelled on the 20th February, and that from and after that date no member of the class would be held insured or liable to assessment. The plaintiff received this notice on the 14th February, and on the 22d February, his property covered by the policy was destroyed by fire; Held, in a suit by him upon the policy, that he could not recover this loss, inasmuch as at the time of the loss his policy had been cancelled, and he had, within the letter and spirit of the by-law, received seven days notice of the intent of the company to cancel his policy on a day subsequent to the giving of the notice.
AMES, C.J.
The plan adopted by the directors and their committee for winding up the affairs of this company, in pursuance of the corporate vote, was, to cancel the general class of policies, of which the plaintiff's was one, on the 15th day of February, 1863, "or as soon after the date named as shall be found practicable, allowing for due notice to all parties and reasonable time to procure new insurance." In other words, the cancellation of this class of policies was to take place as soon after the day named as the seven days notice of the intent to cancel, required by the by-law, had been given. The cancellation was thus made prospective, and dependent, as it must be, to bind the policy-holder, for the day upon which it took effect, upon his receipt of notice.
The notice received by the plaintiff on the 14th day of February, informed him, in substance, that from and after the 20th of that month, "no member of his class would be held insured," as the policy would be cancelled at noon on that day, under the power reserved by the by-law, and in pursuance of the vote of the company. The purpose of the by-law, in requiring seven days notice of the intent to cancel his policy, to be given to a member before the cancellation would become effectual, was, to give him seasonable warning, if he would be protected by insurance, to get it elsewhere. This purpose seems to us to have been as fully answered by the notice given to the plaintiff, as if the 21st day of February, instead of the 20th, had been inserted in the notice as the day from and after which his policy would stand cancelled. By warning him to procure other insurance earlier than the by-law, considering the time he received the notice, permitted, it could not mislead him to his injury; and when the seven days had expired after his receipt of the notice, he had all the notice which the by-law, either in its letter or spirit, required; that is, seven days notice of the intent of the company to cancel his policy on a day subsequent to the giving of the notice.
As the loss happened after the plaintiff had received the seven days notice of the intent to cancel his policy, we hold that his policy was then cancelled, and order judgment to be entered up for the defendants, with costs.