Mechanics' & Traders' Insurance v. Smith

79 Miss. 142

Opinion

Calhoon, J.,

delivered the opinion of the court.

A week after the fire, with full knowledge by the insurance company, through its special agent and adjuster, Mr. Alexander, of the existence of the mortgage, it received, through its local agent, Mr. Russell, the premium on the policy, and held it. This fact carries the whole case shown by the record for the assignee of the insured, because it was a waiver of its defenses. See the concluding paragraph of the opinion in Assurance Co. v. Phelps, 77 Miss., 660 (27 So., 745). And see Mitchell v. Insurance Co., 72 Miss., 53 (18 So., 86); Insurance Co. v. Freeman, 19 Tex. Civ. App., 632 (47 S. W., 1025); American Fire Ins. Co. v. First Nat. Bank of Vicksburg, 73 Miss., 470 (18 So., 931). Tender of this premium back after trial commenced is too late.

We are ready to decide the other questions presented, but it is unnecessary to do so.

Affirmed.