2, 278 S.W. 56; Anno. 110 A.L.R. 817. As to the complaint not stating facts sufficient to constitutea cause of action (a justiciable controversy) as to thisappellant: 22 Am. Jur.2d 861, Declaratory Judgments, Sec. 18; 72 Idaho 181, 238 P.2d 435, 28 A.L.R.2d 952; 226 S.E. 403, 85 S.E.2d 576. Messrs. Irvine F. Belser, Jr., Belser, Belser Baker and Cooper, Gary, Nexsen Pruet, all of Columbia, forRespondent, cite: As to the complaint in this action, for adeclaratory judgment, not being properly subject to Demurreron the ground of misjoinder of causes of action: 23 C.J.S., Declaratory Judgments, Sec. 8; 119 F. Supp. 344; 216 S.C. 1, 56 S.E.2d 576; 92 F.2d 321; Vol. 2, Anderson, Actions for Declaratory Judgment, Sec. 595 (2d Ed.); 13 Cal.2d 56, 87 P.2d 1012; 261 S.W.2d 435; 98 Conn. 794, 120 A. 684; 54 Ariz. 530, 97 P.2d 538; 22 Am. Jur.2d, Declaratory Judgments, Sec. 80; 141 Mont. 103, 375 P.2d 112; Vol. 1, Anderson, Action for Declaratory Judgments, Sec. 172; 240 Ala. 186, 198 So. 240; 90 N.H. 80, 4 A.2d 661; 98 Conn. 794, 120 A. 684; 42 Wyo. 446, 296 P. 206. As to the Complaint stating facts sufficient to constitute acause of action for declaratory judgment and to which theAppellants are properly joined as parties Defendant: 243 S.C. 163, 133 S.E.2d 71; 227 S.C. 317, 88 S.E.2d 64; 210 S.C. 121, 41 S.E.2d 774; 351 Mo. 922, 173 S.W.2d 580; 98 Conn. 794, 120 A. 684; 130 Misc. 55, 223 N.Y.S. 606; 42 Wyo. 446, 296 P. 206.

Id. As a general rule, "an instrument cannot be deposited as an escrow with the agent" of one of the parties. McCabe v. Hartford Accident Indemnity Co., 4 A.2d 661, 664-65 (N.H. 1939). This rule does not apply "if the agent's relation to his principal is such that his acting as custodian of the [escrow] involves no violation of his duty to the [depositor]."

Nor will the fact that a broker is the agent of the insured prevent him from becoming the agent of the insurer. International Paper Co. v. General Fire Insurance Co., supra; Lauhoff v. Automobile Insurance Co. of Hartford, Conn., D.C., 56 F. Supp. 493; Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606; McCabe v. Hartford Accident Indemnity Co., 90 N.H. 80, 4 A.2d 661. Agency is ultimately a question of the intention of the parties, as evidenced by their acts, and is not dependant upon what the particular person in question is called. Tri-City Transport Co. v. Bituminous Casualty Corp., 311 Ill. App. 610, 37 N.E.2d 441; American Casualty Co. v. Ricas, supra; 2 Am.Jur., § 24, p. 26.

Moreover, we have recognized that "a policy may be canceled by mutual consent without a formal surrender of the policy by the insured or a tender of the unearned premium by the insurer." McCabe v. Company, 90 N.H. 80, 86 (1939). An agreement to rescind an insurance contract is itself a contract.

Filteau's knowledge of the plaintiff's expectation is imputable to Peerless. See Boucouvalas v. John Hancock Mutual Insurance Co., 90 N.H. 175, 5 A.2d 721 (1939); McCabe v. Hartford Accident Indemnity Co., 90 N.H. 80, 4 A.2d 661 (1939). See generally 43 AM. JUR. 2d Insurance 1063 (1969).

We conclude that there was no error in the rulings that Sisson Co. "acted as agent for Stamell" and "never became an agent or representative of the plaintiff for the purpose of receiving notice . . . ." See McCabe v. Company, 90 N.H. 80; Ritson v. Atlas Assurance Co., 279 Mass. 385; Annot. 18 A.L.R. 2d 443, 457. It follows that notice was not given in accordance with the terms of the policy, and that the plaintiff is not required to defend the action brought by the defendant Barry, or to satisfy any judgment which may be entered therein. American Employers Ins. Co. v. Sterling, 101 N.H. 434; American Fidelity Co. v. Schemel, 103 N.H. 190.

See Hartford c. Co. v. Lougee, supra, 89 N.H. 222. But it is equally well settled that brokers do not customarily represent the insurer in negotiating insurance, although they may in particular cases. McCabe v. Company, 90 N.H. 80. The reason is obvious. Insurance companies could hardly conduct their business upon any intelligent basis if every broker wherever doing business, could bind any company it chose, to insure against any risk, pending such time as an application could be passed upon by the company.

In any event, according to well established principles, the delivery of the mortgage to the defendant was invalid, and the mortgage has never become effective. McCabe v. Company, 90 N.H. 80, 85, and cases cited. See also, Stavers v. Stavers, 69 N.H. 158; annotation, 48 A.L.R. 401. The defendant can take no title under the mortgage either to the premises described in his deed to the plaintiff which the latter has never accepted (see Johnson v. Farley, 45 N.H. 505), or to the plaintiff's hotel property also described in the mortgage deed. Outstanding in the hands of the defendant the mortgage constitutes a cloud on the defendant's title to the hotel, and a constant threat of foreclosure by power of sale.

There can be no question but that the plaintiff's disability was due "in part" at least to what the court has found to be a chronic disease. Inasmuch as this is the only conclusion that can properly be reached in view of that finding, and since the defendant concedes that the plaintiff is entitled to the full amount of the benefits recoverable under the special provision, a new trial is not required. McCabe v. Company, 90 N.H. 80, 87. The order is