Grace v. American Cent. Ins.

10 F. Cas. 894

• Court: U.S. Circuit Court for the District of Eastern New York
• Decided: October 15, 1878
• Status: Published

Opinion

BENEDICT, District Judge

(charging jury). By this contract the parties have agreed that a notice of cancellment shall put an end to it. The question of fact is, whether there was notice of the cancelling of the policy given by Carroll, who acted for the company, to Anthony, who for the purposes of this question must be taken to be the agent of the plaintiffs. Counsel on the part of the plaintiffs insists that I should decide, as matter of law, that there was no notice given; but it seems to me that it is proper for the jury to consider what was said and done by Mr. Carroll and Mr. Anthony in regard to cancelling the policy, and say as a matter of fact whether or no Mr. Carroll gave Mr. Anthony notice that that was the end of that policy. If you should come to the conclusion that what Mr. Carroll said amounted to this, that upon returning the policy he would cancel it, then that would not be a notice of cancellation sufficient to terminate the contract. Cancellation can be effected without returning the policy, but if all that Mr. Carroll did was to express a wish to have the policy cancelled, that would not be cancelling the policy. The question is, whether he did or said what conveyed to Anthony knowledge of a cancellation of the policy by him at that time. If he gave such notice, then the defendants are entitled to a verdict. If he did not, then the plaintiffs are entitled to a verdict.

[The jury rendered a verdict for the defendants, and the plaintiffs moved for a new trial, which was denied. Case No. 5,648. The judgment of the circuit court was reversed in 109 U. S. 278, 3 Sup. Ct. 207.]