[No. L-11728. May 15, 1959.

LEONA PAULINO, as owner of the JUNIOR CAFE,

BAKERY & GROCERY STORE, plaintiff and appellant, vs.
THE CAPITAL INSURANCE & SURETY COMPANY,
INC., defendant and appellee.

Appeal from the decision of the Court of First Instance of

Albay, dismissing an action for recovery of amount of fire
insurance policy. The appealed decision show that on
February 8, 1952, the plaintiff accepted a fire insurance
policy issued by the defendant; that on April 30, 1952,
the plaintiff wrote the defendant requesting cancellation
of the policy, which the latter received on May 10, 1952;
that the plaintiff did not return the policy or demanded
for the return of the proportionate premium; that
neither did the defendant offer to return the premium;
that the property covered by the policy was destroyed by
fire on August 16, 1952. The defendant refused to make
payment on plaintiff's claim, on the ground that the
policy was cancelled as of May 10, 1952. Plaintiff
contends in this appeal that her letter, dated April 30,
1952, was a mere request or offer to cancel the policy
and did not terminate the same since it was not
accompanied by the surrender of the policy for
cancellation. Held: This case hinges on the
interpretation of paragraph 10 of the policy, reading:

"This insurance may be terminated at any time at the request of the

Insured, in which case the Company will retain the customary short
period rate for the time the policy has been in force. This insurance
may also at any time be terminated at the option of the Company,
on notice to that effect being given to the Insured, in which case the
Company shall be liable to repay on demand a ratable proportion of
the premium for the expired term from the date of cancelment."

Pursuant to this stipulation, the contract in question could

be terminated, "at any time", upon the unilateral act of
either party. Whichever party exercised the "option", did
 not need the approval, consent or concurrence of the
other thereto. That consent was given at the time of the
making of the contract. Moreover, pursuant to her letter,
plaintiff considered the contract terminated upon receipt
of said letter

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by the defendant ("desde el recibo de la presente).

Furthermore, the case of Buckley vs. Citizens Insurance
Co. (81 N.E. 165) relied upon by the plaintiff is not in point.
Although the insurance policy involved in that case
contained a clause analogous to the one involved here, the
option was exercised therein, not by the insured, but by the
insurance company, which likewise, requested the return of
the policy. Upon receipt of the communication of the
company to this effect, the insured returned the policy.
Subsequently, but before the corresponding portion of the
premium had been refunded to the insured, the property
was destroyed by fire. Upon these facts, the insured was
not entitled to collect the amount of the policy, because the
unconditional return thereof upon request of the company
implied "a waiver of his right to treat the policy as in full
force and effect until the company paid or tendered to him
the unearned premium."

Decision affirmed. Concepcion, J., ponente.

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