holders have paid their assessments, in whole or in part, and the funds collected from the assessments will be applied pro rata to the payment of claimant's demand. [See note on this question beginning on page 1281.] Insurance against loss from strike period for determining profits. 2. In determining the loss of net profits due to a strike, for the purpose of fixing liability under a policy of strike insurance, the court may refuse to select as the standard the months immediately preceding the strike, which were a period of marked depression in business, and also an extended period before that time, so as to include a period of marked expansion, but may take a twelve months' period immediately before the strike, if that will best serve as a basis for estimating the loss. construction meaning of words. 4. Contracts of insurance are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, these terms are to be taken and understood in their plain, ordinary, and popular sense. [See 14 R. C. L. 925; 4 R. C. L. Supp. 930.] wages as fixed charges. 5. The average daily fixed charges, against the loss of which, by a strike, an employer is insured, will include the salaries of officers and employees whose term is of longer duration than the usual period of a strike, and whose services cannot be dispensed with without loss and without rendering the employer unable to resume normal production promptly at the end of the average daily production. 8. Under a policy insuring against strike losses, under which the liability is to terminate when the daily average production equals 80 per cent of normal, a period of thirty days may be adopted for ascertaining the daily production. -right to unpaid premium. 9. Upon the insolvency of a mutual insurance company and cancelation of its policies, the unearned premium on a policy cannot be added to a claim for loss under it, but the whole premium note will be applied to payment of losses. [See 14 R. C. L. 854; 3 R. C. L. Supp. 301. See also note in 1 A.L.R. 598.] APPEAL by the receivers from an order of the Circuit Court No. 2 of Baltimore City (Stein, J.), sustaining exceptions to the auditor's report in a receivership proceeding as to adjustment of claims for strike losses and for unearned premiums alleged to be due by reason of the cancelation of strike insurance policies; and cross appeal to protect interests of policyholders. Affirmed in part. The facts are stated in the opinion Messrs. Walter L. Clark, Stuart S. Janney, Morris A. Soper, J. Purdon of the court. Wright, and George S. Jones for receivers, appellants. (143 Md. 303, 122 Atl. 195.) Messrs. Sylvan Hayes Lauchheimer and Malcolm H. Lauchheimer, for claimant: The four months immediately preceding the strike is too short a period, and is not a fair period upon which to estimate the profits to be gained by a company during the year 1921 had the strike not occurred. Manning v. Grinstead, 121 Ky. 802, 90 S. W. 553; Buffalo Forge Co. v. Mutual Security Co. 83 Conn. 393, 76 Atl. 995; Dickinson v. Hart, 142 N. Y. 183, 36 N. E. 801; Nelson Theatre Co. v. Nelson, 216 Mass. 30, 102 N. E. 926; Kyd v. Cook, 56 Neb. 71, 71 Am. St. Rep. 661, 76 N. W. 524; Chicago Bonding & Ins. Co. v. Oliner, 139 Md. 408, 18 A.L.R. 1081, 115 Atl. 502; McCausey v. Hoek, 159 Mich. 570, 124 N. W. 570, 18 Ann. Cas. 945; Chapman v. Kirby, 49 Ill. 211; Pennsylvania Steel Co. v. New York City R. Co. 117 C. C. A. 503, 198 Fed. 721. To interpret the phrase "fixed charge" as covering all losses sustained in good faith because of a strike is entirely reasonable. 1 Joyce, Ins. 581; McEvoy v. Security F. Ins. Co. 110 Md. 275, 22 L.R.A. (N.S.) 964, 132 Am. St. Rep. 428, 73 Atl. 157; 14 R. C. L. 926; Worrell v. Kinnear Mfg. Co. 103 Va. 719, 49 S. E. 988, 2 Ann. Cas. 997. Coverage is only to stop when the average daily sales reach and maintain an average of 80 per cent over an appreciable period of either two or three months, and, in the event of ambiguity, "that construction should be adopted which will be favorable" to the assured. McEvoy v. Security F. Ins. Co. 110 Md. 279, 22 L.R.A. (N.S.) 964, 132 Am. St. Rep. 428, 73 Atl. 157. The claim for the assessment can be offset by the assured against his claim for losses under the policy. Baltimore Ins. Co. v. M'Fadon, 4 Harr. & J. 31; Colton v. Drovers' Perpetual Bldg. & L. Asso. 90 Md. 85, 46 L.R.A. 388, 78 Am. St. Rep. 431, 45 Atl. 23; Cahill v. Original Big Gun Beneficial & Pleasure Asso. 94 Md. 353, 89 Am. St. Rep. 434, 50 Atl. 1044. Pattison, J., delivered the opinion of the court: The Employers' Mutual Insurance & Service Company of Maryland, which was incorporated under the laws of this state for the purpose of writing a class of insurance gen erally called "strike insurance," began to issue policies in August, 1920, but operated for a period less than a year, when its activities were crippled by a series of strikes and labor difficulties, appearing in different industries throughout the United States, but chiefly in the printing industry. It was a mutual company, and its policyholders and members were subject to an assessment equal to the deposit premium, if such assessment was required for the payment of losses. And because of losses, and the many claims filed against the company, the board of directors found it necessary to levy and did levy an assessment of 100 per cent of the deposit premium upon each of its policyholders. But only a small number of them paid their assessment, either in full or in part, leaving unpaid thereon, in the aggregate, approximately $500,000. To prevent further loss, the outstanding policies were, in the last days of October, 1921, canceled, and, as a result thereof, claims were filed for unearned premiums claimed to be due by reason of such cancelation. On the 9th day of November of the last-named year, while the company was in the condition mentioned, receivers were appointed for it upon the application of the insurance commissioner of Maryland. At that time the assets of the company consisted of $500,000 in cash and $1,000,000 owing to it by the policyholders on the assessments levied against them, and by The Lloyds of London and the Excess Reinsurance Company of London as reinsurance, making the total assets of the company approximately $1,500,000. Against this sum have been filed with the receivers, claims aggregating about $7,000,000. Upon their appointment, the receivers proceeded with their task of winding up the affairs of the company, and to this end an auditor was appointed by the court, authorized to take testimony in connection with the proof of various claims of its policyholders. Accountants were al so employed by the receivers, under the order of the court, to examine the books of the various companies and persons insured to obtain the necessary information regarding fixed charges and net profits and other matters in connection with the claims. In making these investigations, and in the hearings had in connection therewith, a number of questions arose involving the construction of certain provisions of the policies, affecting alike the rights of all the claimants thereunder, and it was thought best by the receivers that they should receive directions from the court as to such questions. Therefore two claims were selected as test cases upon which appropriate proceedings were instituted, in which the views and directions of the court in respect to such questions were sought to guide the receivers in their dealing with all the claimants. The two claims selected were the Standard Printing & Publishing Company and the Fleet-McGinley Company. The case of the Standard Printing & Publishing Company, the one now before us, was submitted to the court upon an agreed statement of facts, which contains the policy of insurance under which it was insured; the by-laws of that company; and its profit and loss statements, first, for the year ending December 31, 1920; second, for the four months preceding the strike; third, for the period of the strike commencing with May and ending with September, 1921. It also contains schedules of "fixed charges" filed by the receivers and claimant respectively, commencing the 1st day of May, and ending September 30, 1921, both inclusive, and also statements showing monthly sales made by the insured between May 1, 1920, and November 1, 1921. The provisions of the policy which are important in passing upon the questions presented are the follow ing: "Indemity. "In consideration of the statements set forth in the declarations hereto attached, and hereby made a part hereof, and of the premium deposit specified herein (which de posit is subject to adjustment), and that the assured, by acceptance of this policy, does also bind himself. his executors or administrators, to pay all such further sums as may from time to time be assessed on this policy by the directors of said company, in conformity with the articles of incorporation and bylaws of this company and the laws of the state of Maryland; provided that such further sums shall not in any case be more in any one policy year than an amount equal to the premium deposit for such policy year, does hereby agree to indemnify the individual, firm, or corporation named in statement 1 of the declarations for the period of one year against the direct, actual loss of average daily fixed charges and/or net profits, as hereinafter defined, caused by a of the assured, strike of all or part of the employees and sus tained during the period of such strike, said strike beginning while this policy is in force (except during the first fifteen days as hereinafter provided) and continuing for a period not exceeding the 300 next succeeding working days, at a rate not exceeding three hundred dollars ($300) per diem, and not exceeding an aggregate total indemnity of ninety thousand dollars ($90,000) during any policy year." "Company's Liability. "B. If a strike occurs during the term of this policy so as to cause a partial or a total prevention of production, the company shall be liable for 80 per cent of the direct actual loss of fixed charges and/or net profits sustained not exceeding in either case the per diem indemnity or the total indemnity herein stated; but the company shall not be liable for any consequential loss whatever; nor shall the company in (143 Md. 303, 122 Atl. 195.) any case be liable for further loss hereunder, when, after a strike at the plant of the assured covered by this policy, causing a total prevention of production, the average daily production at said plant becomes equal to eighty (80%) per cent of the average daily normal produc: tion, nor shall the company be liable for further loss hereunder when, after a strike at said plant causing a partial prevention of production, the average daily production of that part which was interrupted by the strike equals eighty (80%) per cent of the proportion so interrupted." "Payment of Indemnity. "I. This contract is one of indemnity only, and there shall be no liability unless there has been actual loss. If the industry in which the plant herein described is engaged becomes materially and generally affected by increase or decrease in business activity during the period of a strike at said plant, it is the intent of this policy that, in the absence of direct proof of the actual, direct laws caused by enduring the period of such strike, ascertainment of the actual loss shall be arrived at through due consideration of what such increase or decrease shows might reasonably have been expected during the period of such strike; but liability hereunder shall in no event exceed the per diem indemnity, or the total indemnity herein. stated." There were four questions presented to the court below, all of which are presented to this court on appeal. The first question is, How is the actual loss of average daily fixed charges and/or net profits insured against to be ascertained? The consideration of this question may very properly be divided in two subdivisions: First, the period to be used in calculating "the average;" and, second, the element which makes up "fixed charges." What would have been the actual net profits of the business during the strike period had the strike not occurred is impossible of exact ascertainment; consequently the amount of loss caused by the strike is more or less speculative. The loss of net profits may be, and at times is, estimated by selecting some other period of time in which the insured has been engaged in business, most nearly approaching the strike period in similarity of conditions, and by ascertaining the average daily net profits of that period; and if it be found that the average daily net profits of the selected period are greater than those earned during the strike period, because of the strike, the difference therein is the loss of average daily net profits during the period of the strike, subject, of course, to any special facts affecting the business of one and not the other of said periods, indicating with reasonable certainty that the average daily net profits of the period selected would be increased or diminished during the period of the strike by those facts. No unvarying general rule can be established as to the period of time to be selected as a basis upon which the loss of profits during the strike period may be estimated, applicable to all cases, because of the varying circumstances and conditions incident thereto. It is only in those cases of like character and conditions that any general rule can be established applicable to all. The claims filed against the receivers in this case are very similar. The policies under which the claims. were filed are practically the same in form, and 90 per cent of them were issued to those engaged in the printing business, who were alike affected by the printers' strike of 1921. It was because of their great similarity that the court below was asked, in passing upon the exceptions filed to the claim of the Standard Printing & Publishing Company, to lay down some general rules applicable to all the cases, by which the receivers may be guided and controlled in distributing the funds in their hands. The counsel for the receivers contend that the first four months of the year 1921 should be selected and used in estimating what would have been the average daily net profits during the strike period had there been no strike, the reason given therefor being that this, the nearest period to the strike, showed a falling off of business, the sales being largest in January, and smallest in April, the month immediately preceding the strike. That such falling off of business started in the latter part of 1920, and continued through the first four months of 1921, which they claim indicated that the period suggested by them approached as near as any other time what would have been the business conditions of the strike period immediately following, in the absence of a strike. There was nothing, at least, to indicate that it would be more. The claimant, however, meets this contention by saying that the four months named by the receivers were not only too short a period upon which to estimate the profits of the strike period with fairness to it, but such period was at a time of great fluctuation and depression in business, and when the sales of the claimant were at their lowest ebb. The counsel of the claimant contends that, in addition to the first four months of 1921, the twelve. months of the year 1920 should be included in the period to be used, because, as stated by them, it would include the fiscal year of the Standard Printing & Publishing Company, ending with the 31st day of December, 1920, and the parties would thereby have the benefit of the known net profits of that year. In reply to claimant's contention that the sixteen-month period immediately preceding the strike should be used, the receivers state that the first and major part of the year 1920 was abnormally good, and, if that year was included within the period, it would produce a result unfair to the insurance company. The court refused to accept either of the contentions made by the parties, and fixed the year commencing May 1, 1920, and ending with the 30th day of April, 1921, as the period to be used as a basis in estimating the loss of the average daily "fixed charges" and/or average daily net profits during the period of the strike. The court, in selecting the period mentioned, largely avoided the apprehended unfair result which the parties said would follow if the period suggested by the other were adopted. It refused to accept the fourmonth period immediately preceding the strike, because of the extremely low average of daily profits that would have resulted therefrom, and also declined to accept the sixteenmonth period, as it would have made the daily average profits too high because of the inclusion within that period of six or eight months of greatly abnormal profits. In the period selected by the court were included not only the months of low profits, but several months of very large profits. This, we think, had the effect of increasing the average daily net profits of the period selected, to an amount sufficient to meet any well-founded, contemplated increased profits of the strike period that immediately followed. The period selected by the court below meets with our approval, as it will, in our opinion, based upon the record before us, best strike-period Insuranceagainst loss from for determining profits. serve as a basis for estimating the loss of average daily profits and "fixed charges." We will now consider the question as to what are "fixed charges" within the meaning of the policy. The receivers and the claimant each filed a schedule of "fixed charges," which, it seems, they thought should be paid or allowed under the policy. In each of the schedules are found the following items: "Rent," $1,741; "office and officers' salaries," |