Lauman

The facts upon which this appeal is based are stated in our former opinion herein. The conclusions there reached as to items one and three of’ the policy in question are not questioned on this rehearing. We therefore adopt that opinion in part as follows:

[1] “ The record shows that Spinning was employed as a bookkeeper by Horton & Son, and that he was conversant with the practice and custom of the firm in the matter of the cancellation of insurance policies—which was, that in every case the assured was given notice of cancellation. Indeed, Mr. Horton himself corroborated Spinning in this regard, and goes somewhat further when he testifies: ‘Our custom was first to protect the assured in some other company, and to notify him by either sending him a new policy or advising him that we could not replace it, and request the return of the other policy; and when the other policy came back, or when the notice was duly given to him of the cancellation, then was the time that we stamped that Canceled.’ (Italics ours.) Horton further testified that he maintained the foregoing practice in every instance. Under these circumstances Horton & Son were mere brokers, and being such were without…