As to these circumstances the evidence is in conflict. This view is not in conflict with the case of Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 81 N.E. 165, 13 L.R.A. (N.S.) 889, where the circumstances held to amount to "actual payment," and so to require the return of the unearned premium as a condition to cancellation, were materially different. We think the objection to the form of the notice of cancellation is technical and without merit. It is true the notice declares that the policy "is hereby canceled," whereas the policy provides that it may be canceled at any time by the company "by giving five days' notice of such cancellation."

Afterward, on March 1, 1898, in the case of Tisdell v. New Hampshire Fire Insurance Company, 155 N.Y. 163, 49 N.E. 664, 40 L. R. A. 765 (see, also, Id., 11 Misc. Rep. 20, 32 N.Y. Supp. 166), it was again held that a tender was a condition precedent to the cancellation of such a policy — the opinion being delivered by Mr. Justice Bartlett, concurred in by Justices Haight, Martin, and Vann, Chief Justice Parker and Mr. Justice O'Brien dissenting, and Mr. Justice Gray being absent. Again, in the case of Buckley v. Insurance Co., 188 N.Y. 399, 81 N.E. 165, 13 L. R. A. (N. S.) 889 (see, also, Id., 112 App. Div. 451, 98 N Y Supp. 622), the Court of Appeals, following the Nitsch and Tisdell Cases, said: "It is a question of vital importance to the insurer and the insured as to the precise meaning of the cancellation clause in the standard policy.

That decision was followed in Tisdell v. New Hampshire Fire Ins. Co. ( 155 N.Y. 163), and while determining the right of a company to terminate a policy has no application to the right of an assured to cancel the contract. The case of Buckley v. Citizens Insurance Co. of Mo. ( 188 N.Y. 399, 404), cited in the opinion at Special Term and statements contained in the opinions in the Crown Point and Boutwell cases it is said by counsel are decisive of the right of plaintiff to recover in this action. An examination of the opinions in the cases cited when interpreted with regard to the subject-matter under consideration by the court demonstrates the fallacy of that argument.

Judge Vann expressing the views of the dissenters said that he could not see how a mere return of the policy by mail, in response to a notice by which the insurer promised a return of the premium "when" the policy should be surrendered to said insurer, could possibly amount to a waiver of payment as a necessary part of the process of annulment. We have found the same difficulty in reconciling the doctrine of that case — Buckley v. Citizens'Ins. Co., 188 N.Y. 399, [13 L. R. A. (N. S.) 889, 81 N.E. 165] — with the two earlier decisions of that court. The United States circuit court for the southern district of New York construing the same form of contract in Schwarzchild Sulzberger Co. v. Phoenix Ins. Co. of Hartford, 115 Fed. 653-656, said:

"If the insurance company desires to cancel it must, as we have held in the cases cited, not only give the notice required, but accompany it by the payment or tender of the pro rata amount of the unearned premium; it cannot legally demand of the insured the surrender of the policy and its cancellation until this is done." ( Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 404.) "The voluntary and unconditional surrender of the policy was as a matter of law a waiver of his right to treat the policy as in force until the company paid or tendered to him the unearned premium."

I am unable to agree with the majority opinion for several reasons: (a) The weight of judicial opinion, including the holdings of the Illinois courts, is apparently with appellant. Hartford Fire Ins. Co. v. Stephens, 18 Ariz. 339, 161 P. 684; German Union Fire Ins. Co. v. Fred G. Clarke Co., 116 Md. 622, 82 A. 974, 39 L.R.A.(N.S.) 829, Ann.Cas. 1913d 488; Brown v. Prudential Fire Marine Ins. Co. (Mo.App.) 24 S.W.2d 206; Nitsch v. American Central Ins. Co., 152 N.Y. 635, 46 N.E. 1149; Tisdell v. New Hampshire Fire Ins. Co., 155 N.Y. 163, 49 N.E. 664, 40 L.R.A. 765; Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 81 N.E. 165, 13 L.R.A.(N.S.) 889; Peterson v. Hartford Fire Ins. Co., 87 Ill. App. 567; Hartford Fire Ins. Co. v. Peterson, 187 Ill. 395, 58 N.E. 1095; National Hotel Co. v. Merchants' Fire Assur. Co., 183 Ill. App.? 71; Annes v. Carolan, etc., Inc., 336 Ill. 542, 168 N.E. 637. (b) The law of Illinois as declared by the courts of that state governs the disposition of this case.

Such a transaction is a payment of the premium as between the assured and the company." Among other cases so holding are Michigan Mut. Life Ins. Co. v. Hall, 60 Ill. App. 159; Kilborn v. Prudential Ins. Co., 99 Minn. 176, 185, 108 N.W. 861; Griffith v. Life Ins. Co., 101 Cal. 627, 36 P. 113, 40 Am. St. Rep. 96; Life Insurance Co. of Virginia v. Hairston, 108 Va. 832, 62 S.E. 1057, 128 Am. St. Rep. 989; Miller v. Brooklyn L. Ins. Co., 12 Wall. 285, 303, 20 L. Ed. 398; Smith v. Provident Sav. Assur. Soc. (C.C.A.) 65 F. 765; Metropolitan Life Ins. Co. v. Williamson (C.C.A.) 174 F. 116; Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 81 N.E. 165, 13 L.R.A. (N.S.) 889; Imbrie v. Ins. Co., 178 Pa. 6, 35 A. 556; Lawrence v. Penn. Mut. Life Ins. Co., 113 La. 87, 36 So. 898, 1 Ann. Cas. 965. In Vance on Insurance, p. 178, it is said: "Even though the parties may have expressly agreed that the contract shall not be deemed complete until payment of the first premium in cash and in full, this stipulation may be waived by the insurer or any of his agents having competent authority.

In the present case defendant, having held the unearned premium for two months after the alleged cancellation, tendered a portion of it and raised an issue as to the balance. In support of the rule of the Tisdell Case the following, out of many decisions, may be cited: Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 81 N.E. 165, 13 L.R.A. (N.S.) 889; Southern Ins. Co. v. Williams, 62 Ark. 382, 35 S.W. 1101; Peterson v. Hartford Fire Ins. Co., 111 Ill.App. 466, reversed without reference to this question in 209 Ill. 112, 70 N.E. 757; Gosch v. Firemen's Ins. Co., 33 Pa.Super.Ct. 496; Phoenix Assur. Co. v. Munger, etc., Co., 92 Tex. 297, 49 S.W. 222; Chadbourne v. German-American Ins. Co. (C.C.) 31 F. 533; Ins. Co. v. Raden, 87 Ala. 311, 5 So. 876, 13 Am.St.Rep. 36; John R. Davis Lumber Co. v. Hartford F. Ins. Co., 95 Wis. 226, 70 N.W. 84, 37 L.R.A. 131. But see Straker v. Phenix Ins. Co., 101 Wis. 413, 77 N.W. 752; Manlove v. Commercial, etc., Co., 47 Kan. 309, 27 P. 979; Cassville Roller Milling Co. v. AEtna Ins. Co., 105 Mo.App. 146, 79 S.W. 720; Continental Ins. Co. v. Daniel (Ky.) 78 S.W. 866; Taylor v. Insurance Co. of North America, 25 Okl. 92-94, 105 P. 354, 138 Am.St.Rep. 906.

Such testimony supports the conclusion that the agency extended credit to the plaintiff beyond the customary period, and thus made her a debtor of the agency rather than of the insurance company. Perea v. State Life Ins. Co., 15 N.M. 399, 110 P. 559; United States Life Ins. Co. v. Bernert, 166 Or. 44, 87 P.2d 774; Berryman v. Southern Surety Co., 285 Mo. 379, 227 S.W. 96; Nall v. Great Northern Ins. Co., Mo.App., 135 S.W.2d 392; Wytheville Insurance Banking Co. v. Teiger, 90 Va. 227, 18 S.E. 195; Williams v. Empire Mut. Annuity Life Ins. Co., 8 Ga. App. 303, 68 S.E. 1082; Elkins v. Susquehanna Mut. Fire Ins. Co., 113 Pa. 386, 6 A. 224; Lebanon Mut. Ins. Co. v. Humes, 113 Pa. 591, 8 A. 163, 57 Am.Rep. 511; Train v. Holland Purchase Ins. Co., 1875, 62 N.Y. 598; Buckley v. Citizens' Ins. Co., 188 N.Y. 399, 81 N.E. 165, 13 L.R.A., N.S., 889; Fidelity Casualty Co. of New York v. Willey, 3 Cir., 25 C.C.A. 593, 80 F. 497; Stuyvesant Ins. Co. v. Sussex Fire Ins. Co., 3 Cir., 90 F.2d 281; Tarleton v. DeVeuve, 9 Cir., 113 F.2d 290, 132 A.L.R. 343; Sheldon v. Connecticut Mut. Life Ins. Co., 25 Conn. 207, 65 Am.Dec. 565. As to the estopped urged against plaintiff, or her acquiescence in the cancellation by the acceptance of the $3.02 refund, the evidence is conclusive to the effect that the plaintiff did not understand that the "new insurance" became a part of the original insurance policy, or that the unearned premium on the original policy could be applied to the payment of the premium for the additional insurance, or that the original insurance could be cancelled for her failure to pay the premium on the additional coverage.

Atlanta L. I. Co. v. Ash, 228 Ala. 184, 153 So. 261; Stapler v. Parler, 212 Ala. 644, 103 So. 573. Appellee is chargeable with the fraud of its agents causing appellant's loss, whether such fraud was by making misrepresentations as to the contents of the proposed policy or was in the obtaining and discounting of appellant's premium note upon leaving the policy for appellant's examination and approval. State B. L. Ass'n v. Bradwell, 227 Ala. 606, 151 So. 689; New York L. I. Co. v. McJunkin, 227 Ala. 228, 149 So. 663; Gulf Electric Co. v. Fried, 218 Ala. 684, 119 So. 685, 688; Norwood v. Stinnett, 202 Ala. 349, 80 So. 431; Life Ins. Co. v. Hairston, 108 Va. 832, 62 S.E. 1057, 128 Am.St.Rep. 989; Buckley v. Citizens' I. Co., 188 N.Y. 399, 81 N.E. 165, 168, 13 L.R.A.(N.S.) 889; 15 R.C.L. 966; Bourke v. Spaight, 80 Kan. 387, 102 P. 253; McKay v. New York L. I. Co., 124 Cal. 270, 271, 56 P. 1112; United Stales L. I. Co. v. Wright, 33 Ohio St. 533. The policy was never approved or accepted. Appellant's note was fraudulently discounted to an innocent purchaser and paid by appellant.