Agalianos

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 351 The plaintiff sued to recover on a policy of insurance, issued by the defendant to the plaintiff, and covering a certain building and the contents thereof, situated in Lodi, San Joaquin County. The action was tried by the court, the parties thereto having expressly waived a trial by jury. The plaintiff was awarded judgment in the sum of $1,800, which is the amount of the risk provided in the policy. A motion for a new trial was made by the defendant and denied by the court. *Page 352 The defendant prosecutes this appeal from the judgment upon a bill of exceptions. The important allegations of the complaint are as follows: "II. "That on the 15th day of April, 1921, at Lodi, County of San Joaquin, State of California, in consideration of the payment by the plaintiff to the defendant of the premium of $81.00, the defendant, by its agents duly authorized thereto, made its policy of fire insurance in writing to the amount of $1800.00, a copy of which is annexed hereto marked 'Exhibit A,' and is hereby referred to and made a part hereof as if…

The following language contained in the opinion in the above-entitled case will be stricken therefrom: "It will be readily perceived that the above notice is not a notice of cancellation. It was merely a notice of intention to cancel the policy unless within a designated time the premium is paid. It did not operate ipso facto to cancel the policy, but merely notified the defendant that unless he complied with the condition therein stated within the time specified in the notice the policy would be canceled." In lieu of said language the following will be inserted in the opinion: "It will be perceived that the above notice was a conditional notice of cancellation. It notified the defendant that unless he complied with the condition therein stated within the time specified in the notice the policy would stand canceled. If in such case the insured defaults in the payment of the premium within the time specified, then, upon the expiration of said time, the notice operates, ipso facto et eo instanti, to cancel the policy. In other words, in such case, the insured having failed to pay the premium within the prescribed time, the notice then operates to cancel the policy and no other or…