This is an action to enforce payment of loss under a policy of fire insurance. The defense alleged by the affidavit is that the insurance had been duly terminated before the loss occurred. The policy contains a canceling clause as follows:
“When, from any cause, tbe company or its agents shall desire to terminate this insurance effected, it shall be lawful for tbe company or its agents so to do by notice to tbe insured or bis representative, and to require this policy to be given up for tbe purpose of being canceled: provided, that in any such *341case the company shall refund to the insured a ratable proportion, for the unexpired time thereof, of the premium received for the insurers.”
It is not necessary to examine tlie affidavit of defense at length.. This motion may he disposed of by accepting the statement upon defendant’s brief, that—
"The facts in this case present tun. two points: (1) Were the brokers who obtained this insurance for plaintiff the proper parties to whom notice of cancellation of tho risk should, be given V (2) Was an actual tender of tho return premium necessary':”
I abstain from expression of any opinion upon the second of these points, because the conclusion which I have reached upon the first one is decisive of the case. In Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207, the clause of the policy, with respect to termination of the insurance by the company, “on giving notice to that effect, and refunding a ratable proportion of the premium,” was substantially the same as in this case. Notice had been given to the person who had personally procured the insurance, and who, it was expressly stipulated, should be deemed to be tho agent of the assured “in any transaction relating to this insurance.” The supreme court viewed the question as one of interpretation of the contract, and held (reversing the court below) I hat notice to such person was not properly given. With respect to the construction of the similar clause contained in the policy upon which this action is based, counsel have not pointed out, nor do I perceive, any difference in language which would justify a difference of interpretation, unless in the presence of the words, “or Ms representative,” in the clause now under consideration, thus: “Notice to the insured or Ms representative.”
This difference does not, however, remove tho present case from the authority of Grace v. Insurance Co. In my opinion, if — as that case seems to me to decide — the brokers who obtained this insurance were not the plaintiff’s agents to receive no lice of cancellation, they were not his “representatives” for that purpose. I know of no ground upon which the brokers could be held to represent the plaintiff, unless as his agents. Rule absolute.