On Petitions for Rehearing.
These cases are here on petitions for rehearing.
In our former opinion we said:
"Each policy contained, inter alia, the following three clauses:
"'Loss or damage, if any, under this Policy, shall be payable to John M. Kennedy, 3rd, as mortgagee, (3r trustee) as interest may appear, and this insurance, as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property. * * *'
"'It is understood that the buildings insured hereunder are now under foreclosure proceedings by the Corn Exchange National Bank & Trust Co. The premium being paid by the Corn Exchange National Bank & Trust Co. It is agreed that in event of loss, same will be adjusted with the Corn Exchange national Bank & Trust Co. and paid to them and John M. Kennedy, 3rd, Mortgagee, as interest may appear.'
"'This Company reserves the right to cancel this Policy at any time as provided by its terms, but in such case this Policy shall continue in force for the benefit only of the mortgagee (or trustee) for ten days after notice to the mortgagee (or trustee) of such cancellation and shall then cease, and this Company shall have the right, on like notice, to cancel this agreement.'
"After the bid at the sheriff's sale following judgment in the foreclosure suit, Winnet, attorney for the second mortgagee, Corn Exchange, orally advised Kennedy of the intention of Corn Exchange to abandon the property and cancel the policies. Corn Exchange returned the policies to the appellees. Prior to the expiration date of the policies the premises were destroyed by fire. Thereafter Kennedy assigned his interest to Anna L. Bogash, the use plaintiff.
"The issue is whether the policies were in force at the time of the fire or whether Kennedy had acquiesced in their cancellation. At the trial sufficient emphasis was placed upon the question whether the conversation between Kennedy and Winnet amounted to a consent by Kennedy to a cancellation of the policies. This issue was presented to the jury which, by its verdict, must have decided it in the affirmative. Another equally important question -- that of notice -- was overlooked. The appellant contends that by reason of the hereinbefore quoted covenant regarding notice, Kennedy was entitled to notice by the appellees of cancellation, that the failure of the insurance companies to notify Kennedy of the cancellation of the policies prevented the cancellations from being effective as to him, and that, therefore, as to Kennedy, they were in full force and effect at the time of the fire. This court has ruled that a mortgagee clause in a fire insurance policy results in an entirely separate insurance of the mortgagee's interest, which is not affected by acts of the owner. Queen Ins. Co. v. People's Union Sav. Bank (C.C.A.) 50 F.2d 63. Applying this principle to the instant case, the act of the second mortgagee in tendering the policies for cancellation does not affect the rights of the first mortgagee to notice of cancellation expressly guaranteed him by the above-quoted clause of the insurance policies."
The following testimony of Mr. Winnet is substantially all that was said with regard to acquiescence:
"Q. After this property had been sold at Sheriff's sale, did you discuss with Mr. Kennedy any question of the surrendering of these policies for cancellation? A. Yes; I did. I tried to get him to buy the policies. We determined that there was no equity, and we were not getting the title on the sheriff's sale -- we just decided to abandon our bid, and I asked him if he wanted the policies, and he said how much would they cost, and I told him, and he said he wasn't going to spend another cent on the property, and I said I was going to cancel them. He says, 'You do what you think best. In am not going to spend another cent on them.'
"Q. Following that did you surrender the policies through the Corn Exchange? A. I sent them to Mr. Gottlieb.
"Q. Did you advise Mr. Kennedy? A. I advised Mr. Kennedy sometime after that, telling him I was going to cancel the policies again. Our previous meeting was oral -- I mean, we talked this over; I don't think it was over the telephone, as Mr. Kennedy said; although it may have been. I think it was in my office and then, later on, I wrote a letter, and I received no reply to that letter, as far as my recollection goes.
"Q. At the time of the oral conversation what did Mr. Kennedy say when you advised him that you were going to surrender these policies or intended to surrender them? A. He said, 'You do whatever you think is necessary for your client,h -- the substance of it: ...