Atl. 996, 13 L. R. A. (N. S.) 884; Insurance Company v. Brecheisen, 50 Ohio St. 542, 35 N. E. 53; Newark Fire Insurance Company v. Sammons et al., 11 Ill. App. 230.

In the case of Hartford Fire Insurance Co. v. Cameron, 18 Tex. Civ. App. 237, 45 S. W. 158, the court said: "We think that the cancellation clause, taken as a whole, means that, when the company elects to cancel the policy, it must, upon giving notice of such intention, at the same time return or tender to the insured or his agent the unearned portion of the premium. The latter part of the clause, by providing that the company, in such cases, 'shall retain only the pro rata premium,' clearly implies that the other portion shall be returned; and, while it does not in turn declare when the return shall be made, it would be unreasonable and unjust to allow it to cancel its obligation and retain the consideration upon which it was based. It would be equally as unjust and inequitable to require the insured 'to dance attendance at the place of business of an insurance company, and await their pleasure,' and probably be put to his action to recover the little sum due him, the cost of which might be greater than the sum due."

In the case of Hartford Fire Ins. Co. v. McKenzie, 70 Ill. App. 615, the court for the Second district, in construing an identical contract, said: "Where the company seeks to cancel the contract under such stipulation as is above set out, the insured does not have to tender his policy, in order to entitle him to receive back the unearned premium; but it is for the company desiring cancellation to seek the assured and tender the money to him, and till it does so the cancellation has not been effected.". See, also, Peterson v. Hartford Fire Ins. Co., 87 Ill. App. 567; Hartford Fire Ins. Co. v. Tewes, 132 Ill. App. 321; Williamson v. Warfield-PrattHowell Co., 136 Ill. App. 168; Mississippi Valley Ins. Co. v. Bermond, 45 Ill. App. 22; Hamburg-Bremen Fire Ins. Co. v. Browning, 102 Va. 890, 48 S. E. 2; 2 Clement on Insurance, p. 405.

In the case of Mississippi Fire Ass'n v. Dobbins, 81 Miss. 630, 33 South. 506, the same character of contract is construed, and the court, going further, holds that, even in case the contract becomes void, before the company can defend, it must tender and pay over to the insured the unearned portion of the premium.

The authorities holding to the contrary are as follows: Schwarzchild & Sulzberger Company v. Phoenix Insurance Company of Hartford, 124 Fed. 52, 59 C. C. A. 572; Id. (C. C.) 115 Fed. 653; El Paso Reduction

Such policy being framed by virtue of the laws of New York, and the highest court of that state having interpreted same, such construction should be of most persuasive influence, if not binding with us, especially when supported by the weight of authority. Equitable Life Assur. Soc. v. Brown, 213 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682. Hence we hold that the policy was not canceled; no tender having been timely made.

2. It is further insisted that the assured consented as a matter of law that the contract of insurance should be canceled. We do not so conclude from the evidence. Hartford Fire Ins. Co. v. Tewes, 132 Ill. App. 321.

3. As to the question of forfeiture on account of the alleged incumbrance, that was a question for the jury; there being a conflict in the evidence thereon. The fact that a mortgage may have been made thereon and filed of record, and not canceled of record, was not conclusive. It was competent to show the mortgage security had been changed or substituted, or that the debt had been extinguished by renewal and taking other security or payment. All these questions were for the determination of the jury.

The case is reversed and remanded, with instructions to grant a new trial.

KANE, C. J., and TURNER, J., concur.

DUNN, J. (dissenting). With the reasoning and conclusion of the majority opinion I am unable to agree. Our duty in the case is to construe a paragraph of a contract which to my mind is couched in simple, straightforward language, the meaning of which is as unclouded and clear as it is possible to be made by the use of English language, and to my mind the construction which this and some other courts have placed upon it is a perversion of the actual intention of the parties, as indicated therein. This criticism is accentuated when we find that those who draw a different conclusion than that imported by the simple language used have given as grounds reasons at variance with each other and have arrived at the conclusion reached by different routes. The question is, as is seen, whether or not an insurance company may cancel a policy which it has issued on the contract, on simple notice, without either returning or tendering the unearned premium received. One court (New York Superior Court, Tisdell v. New Hampshire Fire Insurance Co., 11 Misc. Rep. 20, 32 N. Y. Supp. 166) says, in coming to the affirmative conclusion on this proposition, that although it is not within the language, yet it is to be implied;

tinental Insurance Co. v. Daniel, 78 S. W. 866, 25 Ky. Law Rep. 1501), that the provision is somewhat ambiguous, and should be construed most strongly against the insurer; another (Court of Appeals of Missouri, Chrisman & Sawyer Banking Co. v. Hartford Fire Insurance Company, 75 Mo. App. 310), that a contract cannot be brought to an end by one party, except by placing the other party in statu quo; while another court (Pennsylvania Superior Court, Gosch v. Firemen's Insurance Co., 33 Pa. Super. Ct. 496) finds its justification in the theory that to support the terms of the contract would be to permit the insurance company to retain the benefits and at the same time repudiate the burdens of its agreement, which would be highly unconscionable and shocking to its (the court's) sense of natural justice. The New York Court of Appeals (Tisdell v. New Hampshire Fire Insurance Co., 155 N. Y. 163, 49 N. E. 664, 40 L. R. A. 765) justifies itself by ignoring and refraining from any discussion of the terms of the contract, and asserting that the question is no longer an open one in that court; while the majority opinion of this court is based upon the propositions that the contract is ambiguous, and the construction contended for by the insurer is inequitable and unjust, and that the weight of authority supports its conclusion.

If the question before us was whether the contract was one we would recommend an insurer to enter into, or whether it would in all cases work out in an equitable and just manner between the parties, I might be able to at least concur in the conclusion reached; but this not being so, and believing as I do that courts have no power to make contracts for people, and that their duty begins and ends with their construction (Lewis v. Commissioners of Bourbon County, 12 Kan. 186; Baltimore v. Baltimore & Ohio R. R. Co., 10 Wall. 543, 19 L. Ed. 1043), I am constrained to dissent. I yield to none in possessing a sincere regard for the administration of equal and exact justice between men, and it appeals to me, equally with the majority of this court, that on the cancellation of this contract and a relief of its liability the insurance company should in good faith return to its customer the unearned money which it has received. But this was a proposition which addressed itself to the Legislature, providing for this contract, and the parties entering into it. The parties, being competent, in the absence of fraud, accident, or mistake, should be reciprocally bound by its terms. The rule which I here invoke finds expression in the language of Mr. Justice Davis of the Supreme Court of the United States in the case of Baltimore v. Baltimore & Ohio R. R. Co., 10 Wall. 543, 19 L. Ed. 1043, 1045, as follows: "It is always competent for parties capable of entering into a business arrangement to fix the terms of it, and to declare what shall be their respective rights

any case see that this has been done, it is required to give effect to the contract which the parties chose to make for themselves, although, in the absence of a special agreement on the subject, the rule to determine the rights of the parties might be different." To the same effect, see the cases of Calderon v. Atlas Steamship Co., 170 U. S. 272, 18 Sup. Ct. 588, 42 L. Ed. 1033; Doe v. Considine, 6 Wall. 458, 18 L. Ed. 8C9.

The law of rescission is the same the world around. The sense of common justice implanted in the bosom of every being prompts him to know that in the absence of a contract, if he desires to rescind an agreement with a fellow man, he should respond to the doctrine of the Golden Rule by doing even unto an adversary as he would that he should be done by. But parties, entering into an agreement within the limits of public policy or the written law, have the right to say under what terms their relationship shall cease, and if they deliberately agree, in event of a conclusion or termination of the contractual relation, what disposition shall be made of money or property entering into it, no court has the power to say that they shall not do so. Our statute, which is merely a declaration of the common law, recognizes that which I have here asserted under the chapter on Contracts (section 98, art. 5, c. 15, par. 827, Wilson's Rev. & Ann. St. 1903), wherein it provides that rescission may be accomplished by the restoration to the other party of everything of value which he has received under the contract, except "when not effected by consent." Thus it will be seen that with the terms under which the parties may relieve themselves of the contract voluntarily entered into a court has naught to do.

The policy here in question was prepared in accordance with the statutes of New York passed in the year 1886. Prior to, that time the Court of Appeals of New York had, in the cases of Van Valkenburgh v. Lenox Fire Insurance Co., 51 N. Y. 465, and Griffey et al. v. New York Central Insurance Co., 100 N. Y. 417, 3 N. E. 309, 53 Am. Rep. 202, held under the terms of the policies then before it, which provided for cancellation on the part of the company by "giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term of this policy," that "where a policy of fire insurance reserves to the underwriter the right to terminate the insurance on giving notice to that effect and refunding a ratable proportion of the premium for the unexpired term, to cancel the contract it is requisite, first, that notice should be given to the assured that the insurance is terminated, not that it will be at a future day; second, that the amount to be returned should be paid or tendered to the assured. He must be sought out and tender made. Holding it subject to his call is insufficient. The underwriter must be certain, also, that the whole 'ratable proportion' is

payment of a less sum does not terminate the insurance." Van Valkenburgh v. Lenox Fire Insurance Co., supra. The case of Griffey et al. v. New York Central Insurance Co., supra, following this case was decided in 1885. The year following, or in 1886, the Legislature of New York provided (Laws 1886, p. 720, c. 488; Gen. Laws 1893, c. 38) for the issuance of a uniform policy by the insurance companies of that state, under the terms of which the policy in question in this case was written.

It will be noticed, on comparison, that a very material change was made in the terms of this paragraph, which is noticed by Mr. Clement in his work on Fire Insurance (volume 2, p. 405, rule 8), referred to in the majority opinion, and of this section of the policy, and of the necessity for a return or tender of the premium in order to effect a cancellation, he says: "Notwithstanding the change in the language of the standard form, cancellation cannot be made effective by mere notice, when premium has been paid. In addition to the notice required, the insurance company is bound to seek out the insured and return or tender to him the whole amount of the unearned premium." In support of this rule there are a great number of authorities cited, most of which we have examined, and nearly all of which are not in point on the question before us. This author's astonishment that the change in the language in the new contract from that in contracts which had received a settled construction should have resulted in no change of meaning is manifested by the use of the word with which he begins the rule, "notwithstanding." And, indeed, may he well have been astonished; for it is the uniform rule of construction, observed by all courts, that "when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the Legislature gross carelessness or ignorance, which is altogether inadmissible." Ellis v. Paige et al., 1 Pick. (Mass.) 43. This well-recognized and uniform rule receives the sanction in many authorities. Endlich on Interpretation of Statutes, §§ 382, 384; United States v. Bennett, Fed. Cas. No. 14,570; Oxford v. Frank et al., 30 Tex. Civ. App. 343, 70 S. W. 426; Pingree v. Snell, 42 Me. 53; Ex parte Coombs, alias Shirley, 38 Tex. Cr. R. 648, 44 S. W. 854; Bartlett et al. v. King, 12 Mass. 537, 545, 7 Am. Dec. 99; Rich v. Keyser, 54 Pa. 86.

While, no doubt, the rule of the foregoing cases will not apply with its full force in the present instance, yet to my mind it is at least strongly persuasive. Of it Mr. Chief Justice Parker says, in his dissenting opinion in the Tisdell Case, supra, that "now, after these decisions were made (the Van Valkenburgh and Griffey Cases, supra), the can

pared, and it does not seem to be an intemperate use of the imagination to draw the inference that it was prepared in view of the decisions to which I have referred, and to meet them by establishing a contract which should make cancellation by the company less difficult." In the case of Oxford v. Frank et al., supra, Chief Justice Conner, of the Court of Civil Appeals of the Second District of Texas, in the discussion of this proposition, said: "We may concede that a repeal of a statute by implication is not favored by law. But where a new statute is passed, which is declared in terms to be a substitute for the old, and which embraces the whole subject-matter, those parts of the old statute which are left out in the new are repealed and annulled. We must presume that such a statute was made for some purpose, and that purpose must necessarily be either the addition of some provision not in the old, or the repeal of something that is in it, or for both purposes. When, therefore, an important provision in the old statute is omitted from the new (which was intended as a substitute for the old), we must presume that the Legislature intended to repeal it, or that they were guilty of gross carelessness or ignorance, which is altogether inadmissible.' See, also, Stewart v. Kahn, 11 Wall. 502, 20 L. Ed. 176, in which the Supreme Court of the United States say: 'It is a rule of law that where a revising statute, or one enacted for another, omits provisions contained in the original act, the parts omitted can not be kept in force by construction, but are annulled.'" To the same effect is the language of Chief Justice Woodward of the Supreme Court of Pennsylvania in the case of Rich v. Keyser, supra: "Herein the act of 1863 plainly differs from that of 1772. Was the discrepancy accidental or intentional? The Legislature of 1863 must be presumed to have known what the language of the act of 1772 was, and what judicial construction had been placed upon it. Then, knowing this, and yet not following it, but substituting for it different language, did they not mean that we should construe their language according to its ordinary import? I see no other ground for judicial construction to rest upon. Indeed, the words of a statute, when unambiguous, are the true guide to the legislative will. That they differ from the words of a prior statute on the same subject is an intimation that they are to have a different, and not the same, construction; for it is as legitimate a use of the legislative power to alter prior statutes as to displace the common law."

The language of the cancellation clause of the policy, which existed in New York, and which had received a construction at the hands of the Court of Appeals, as is seen in the Van Valkenburgh and Griffey Cases, was, as is quoted in the opinion of the latter case, by "notice and by refunding a ratable pro