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."

The question of the necessity of such a refund as a condition of cancelation of policies by insurers has been much before the courts and has given rise to diverse conclusions, depending in many instances upon the precise terms of the policy before the court. The most common form in which it has arisen is under the provisions of the New York standard fire insurance policy, which have been copied in a number of other States. Under this and similar forms of policy the greater number of courts passing upon the matter have held that the refund of any unearned premium in the hands of the insurer is a condition precedent to cancelation by it. Tisdell v. New Hampshire Fire Ins. Co., 155 N.Y. 163, 49 N.E. 664; Buckley v. Citizens Ins. Co. 188 N.Y. 399, 404, 81 N.E. 165; Hartford Fire Ins. Co. v. Stephens, 18 Ariz. 339, 161 P. 684; 13 L.R.A. (N.S.) 886, note; Richards on Insurance (3d Ed.), p. 388; 5 Cooley's Briefs on Insurance (2d. Ed.), p. 4601. This construction of the cancelation provision in these policies has, however, been criticised by writers of textbooks and there is a substantial body of authority which takes an opposite position. Davidson v. German Ins. Co., 74 N.J.L. 487, 65 A. 996; Mangrum Otter, Inc. v. Law Union Rock Ins. Co., 172 Cal. 497, 157 P. 239; Webb v. Granite State Fire Ins. Co., 164 Mich. 139, 129 N.W. 19; Schwarzschild Sulzberger Co. v. Phoenix Ins. Co., 115 F. 653, 654; Austin Fire Ins. Co. v. Polemanakos (Texas), 207 S.W. 922; and see Parsons Arbaugh v. Northwestern National Ins. Co., 133 Iowa 532, 110 N.W. 807; Richards on Insurance (3d Ed.), p. 387; Vance on Insurance, p. 495.