
    Joseph Kelly et al., Plaintiffs and Respondents, v. The Commonwealth Insurance Company of the State of Pennsylvania, Defendants and Appellants.
    1. A mere oral contract of insurance, supported by a sufficient consideration, which is to take effect forthwith, although it may be entered into cotemporaneously with an agreement by .the insurers to deliver, and the assured to accept subsequently, as a substitute therefor, a written policy by the former in the form usually adopted by them, becomes binding and remains in force until the delivery or tender of such policy. Until then, the condition usually inserted in such policies, requiring prepayment of the premium to make them binding, unless expressly adopted by the parties in such oral contract, forms no. part of the contract of insurance between them.
    
      2. A mere demand of the premium, without insisting upon it or tendering a valid policy, does not terminate the oral insurance.-
    3. Under such oral insurance, the insured may recover for a loss, although after it occurred, and while the insurers were ignorant of it, he paid them the premium, and received from them a written policy which was not binding on them, by reason of not being countersigned by one of their officers as was required in the body of it.
    4. Whether an exception lies to the admission of testimony elicited by questions put by a juror ? (Query.)
    (Before Moncriee, Robertson and Monell, -J. J.)
    Heard, October 15, 1862;
    decided, November 29, 1862.
    This was an action upon a contract of insurance, to recover for damage by fire to a stock of goods of the plaintiffs, in a store in the City of Yew York, on the, 11th of July, 1860. The character of the contract appears by the pleadings and evidence hereinafter stated.
    The defendants were a corporation, chartered by the State of Pennsylvania; the plaintiffs were partners under the firm of “ Joseph Kelly & do.” . Policies of insurance issued by the former, in the State of Yew York, according to their usual form, contained provisions that they are “not to “ be valid until countersigned by their duly authorized agent, “and are to be made and accepted in reference to conditions “thereto annexed, which are to be used and resorted to, in “order to explain the rights and obligations of the parties “thereto, in all cases not therein otherwise specially provided “for.” They commenced with witnessing that the defend- , ants had received a certain premium from the insured, for insuring the described subject of insurance, but had also a condition annexed, that “no insurance, original or continued, should (shall) be considered as binding until the “actual payment of the premium.”
    In the year 1.860, one David C. Hewson was the agent of the defendants, in the City of Yew York.
    In June of that year the agent of another insurance company, (Francis Campbell,) proposed to Hewson that the latter should take all the risks the former had obtained as such agent, and among others» an insurance on the plaintiffs’ stock and store, and subsequently sent a written application to Hewson, for insurance for the plaintiffs. Afterwards, about the 26th of that month, Hewson went, as testified to by one of the plaintiffs, (Kelly,)' to their store, told him he had come to make a survey; actually examined such store, and thereupon stated that he “ ivould take the risk * * make out the policy and send it down at seventy cents, (fourteen dollars on two thousand;) he would make it binding from the first of July,” and that the plaintiff (Kelly) “ should ha^e the policy.” Hewson, when examined as a witness, narrated his conversation at that time with Kelly, but could not recollect anything else of it but what he so narrated, which did not embrace any such promises. He admitted, however, that he transmitted the application to the defendants the same day, and told Campbell he “ would take the risk.” Before the first of July he obtained a written policy from the defendants, as applied for, signed by the other officers, but not countersigned by him, which he left with Campbell, directing him not to deliver it without payment of the premium, and stating that until then he would not countersign it. A clerk of Campbell, (Crary.) by his direction, took such policy on the day he received it, and again a day or two afterwards, but before the fire, to the plaintiff Kelly, and offered it to him, but he was not ready to pay the premium. He again took it to him on the ninth of July, when the same plaintiff promised to call next day and pay such premium, but he did not. This was denied by the plaintiff Kelly, in his testimony. He stated that such clerk only told him to come to Campbell’s office to get the policy. A.statement of such clerk, under oath, was also read, to the effect that it was on or about the 10th of July that he had notified the plaintiff Kelly, that such policy was ready to be delivered to him.
    Some time in July, before the 10th, the plaintiff Kelly had a conversation in the office of Mr. Campbell, respecting such written policy, with a Mr. Brewster, who had his office on the same floor with Campbell, and was requested by him, on account of Illness, to ascertain what the plaintiff, who was there, wanted. According to such plaintiff’s testimony, he desired to transfer certain machinery, on which he had an insurance for five hundred dollars, to the store in question, and said to Brewster, in reference to such policy, which was then present, “add five hundred dollars more to this and I will pay you the whole of it now, and you can send it to my store, as I am going out of town and will not be back for a week.” Brewster declined this proposal, but promised “to take the memorandum down and put it in it (the policy) with the direction to send it to the plaintiff Kelly’s store, and collect the premium there for the whole.” Brewster, in his testimony, stated that he did not recollect that Kelly said anything about paying the premium or transferring the insurance, although he remembered that he desired some alteration. He made a memorandum of the plaintiff’s request, put it in the policy and redelivered both to Campbell. The latter directed his clerk to take such policy to Hewson to get it altered, but by mistake he carried and delivered it to the plaintiff Kelly.
    On the next morning after the fire, (July 12th,) before Campbell had heard of it, the plaintiff Kelly applied to him for the policy, which he gave him, but asked for fourteen dollars. The plaintiff looked at it and said, “ This five hundred dollars that I applied for has never “ been put into which Campbell replied, “ No," congratulating him, however, on having a cover of $2,000 from a good company. On the same morning the same plaintiff called on Hewson to countersign the policy, which he refused, because the premium had not been paid.
    In relation to the party for whom he acted as agent, Campbell testified that, his commissions as a broker were paid by the compan;-; when he wanted his commission he went to them; that “it is the custom among insurance companies to pay a commission to brokers. They send the policy to the broker, and he collects the premium from the assured and pays it over to the company, deducting his premium.” The plaintiff Kelly did not agree to pay him. commission in this case, and he had not been paid by either party. One of the conditions attached to the written policy in question was, that “the persons, if any other than the assured, who procured the insurance in it to be taken by the company, should be deemed to be the agents of the insured, and not of the company, in any transaction relating to such insurance.”
    After setting out the incorporation of the defendants, the partnership of the plaintiffs, and the application by the latter to the former for the insurance in question, the complaint alleged, in substance, as follows: That the defendants, on or about the 28th of June, 1860, agreed to insure the plaintiffs against loss by fire to the amount of two thousand dollars, on their stock, materials in and interest in the lease of the store in question, for a year from the first of July following, at a premium of fourteen dollars; which the plaintiffs agreed to pay as a consideration for such agreement to insure, and neglected to insure themselves in any other way on the same subject matter. That it was then and there agreed between both parties, that such -insurance should be valid and binding on the part of the defendants, for such time and sum. That the plaintiffs owned such stock and lease. That the fire, which it mentioned, produced the loss for which indemnity was claimed. That the plaintiffs duly fulfilled all the conditions of such agreement and insurance on their part, tendered such premium on the 12th of July, which the defendants refused to accept; gave notice of their loss, and proof of the fire and damage, more than sixty days before the commencement of the action, and demanded payment. The complaint also, in addition to such agreement to insure, set forth another agreement by the defendants, in consideration of the premises, to deliver to. the plaintiff a policy of insurance, in the usual form of poli cies issued by them, for the like amount and term, in a reasonable and convenient time. It further alleged, that they executed and delivered an instrument, whereof a copy was annexed to the complaint, and waived the payment of the premiums and the countersigning of the policy, as conditions precedent; which policy, so annexed, was alleged to be in the usual form of policies issued by the defendants, except that it was not countersigned.
    The original policy, of which a copy was thus annexed to the complaint, contained the provisions before stated, that it should not be binding until the premium was paid, nor unless it was countersigned by the agent of the defendants in New York, and that the persons procuring the insurance should be deemed the agents of the insured.
    ' The answer contained a general denial of each allegation in the complaint, not previously therein “well and “ sufficiently answered unto, confessed and avoided, tra- “ versed or denied.” It alleged, however, before such denial, that an application was made to the defendants for insurance, by the plaintiffs, upon the subject mentioned in the complaint; that they thereupon agreed to deliver to the latter a policy of insurance, in the usual form, and containing the usual clauses and conditions of policies made by them for the State of New York, upon the property, for the amount and term mentioned in the complaint, upon the express condition, however, that the plaintiffs should, as a condition precedent to the delivery and binding effect of such policy, pay the premium required as a consideration for making such insurance; and that the insurance should not be binding until the payment of such premium, and until the policy should be countersigned by their agent in New York; that the defendants made the instrument set out in, and of which a copy was annexed to, the complaint, notified the plaintiffs that they were ready to execute such agreement on their part, and have the policy countersigned on payment of the premium, and offered to have it so countersigned and delivered on such payment, and demanded the same; but the plaintiffs refused to pay such premium, and the defendants never waived the payment thereof, or the countersigning of such policy, as conditions precedent of such insurance.
    
      An exception was taken by the defendants’ counsel, to the admission of the conversation before mentioned, between the plaintiff, Kelly and Brewster, in reference to such policy of insurance. The Court allowed the former to state the transaction, saying that if it should not be connected with the defendants, the Court would strike it out. Ho subsequent application was made on the subject. Both Brewster and Campbell were subsequently examined by the defendants as to such conversation.
    Various requests were made by the counsel for the defendants to the Court, to instruct the Jury upon various points as follows:
    First: In regard to Campbell’s agency: (1.) That if he. had been requested to procure insurance for the plaintiffs, he was their agent; (2.) That the provision in the policy made him so;
    Secondly. In regard to the payment of the premium: (1.) That there was no sufficient proof of an agreement by the defendants to make the insurance binding, without receiving the premium; (2.) That Hewson had no authority to waive its prepayment; (3.) That there was no insurance, if the parties did not intend to make the contract binding without payment of the premium;
    Thirdly. In regard to the oral contract: (1.) That all the conditions of a policy in the usual form, would apply to an oral contract which contemplated the execution of such a policy; (2.) That no oral contract was made between the parties, except to insure by a policy from the 1st of July, following; (3.) That the oral contract ceased to operate, when such policy was ready and offered for delivery; (4.) That there was no existing contract to insure, if the policy was to be received by the plaintiffs, and the premium paid before the loss occurred;
    Fourthly. In relation to the delivery of the policy; that leaving it with Campbell, or the handing of it by the latter to Kelly, was no delivery;
    Fifthly. In regard to the effect of the policy ; that it was inoperative even if delivered, both because it wanted the agent’s signature, and because the premium had not been .paid;
    Lastly. In regard to the interview between Kelly and Brewster; that no proper tender then took place, because the latter was not the defendant’s agent.
    After stating that the plaintiff, Kelly, had stated on his examination as a witness, that Hewson came to the store of the plaintiffs, and after examining it and the stock, promised, that the defendants would insure them for a certain sum at a certain rate, and for a certain time, and said “ that they might consider themselves insured from that time,” the Court charged the Jury, “that if they should find the facts as stated by Kelly to be true, this would constitute a contract between the parties, and the defendants would be liable, because under such a state of facts,” the delivery of a policy “would be immaterial.” And, also, that the plaintiffs would be entitled to recover, even if there had been “no such arrangement as to make a binding agreement to insure as of that date,” but merely a proposition to insure sent on to Philadelphia, and “ the policy came back and was delivered to the plaintiffs, no premium being exacted or anything remaining to be done;” or, “if the policy was handed to the plaintiffs, as intended to be an effectual agreement, binding on the defendants, insuring the plaintiffs;” but that the defendants were not liable “if there was no delivery of the policy.” It also charged, that “the effect of what passed between Kelly and Brewster * * was not material in any aspect of the case.” It refused to charge in any other manner the propositions requested by the counsel for the defendants, to be given to the Jur$* as instructions, to which the latter excepted.
    A verdict having been given for the plaintiffs, the defendants appealed from the judgment entered thereon, as well as from an order denying a new trial, which appeals were now heard.
    
      L. B. Woodruff, for defendants, appellants.
    
      I. The complaint alleges nothing more than an agreement of the defendants to execute and deliver to the plaintiffs, a policy of insurance in the usual form of policies issued by thern. This was not a consummated insurance, but, at most, an executory agreement. (Sandford v. Trust Fire Ins. Co., 11 Paige, 547.)
    II. The action is brought to recover on an alleged actual insurance of the premises, and not to compel the performance of an agreement to execute and deliver a policy whereby the plaintiffs should, be insured. The agreement alleged and proved according to the plaintiffs’ own testinjony, does not sustain the action. ...
    This is not in form or substance an action to compel the delivery of a policy.
    Such an action is to be tried .by the Court and cannot be tried by a Jury unless issues are framed or specific questions ordered to be tried by Jury.
    Besides, in order to set up such a cause of action the plaintiffs should aver that within a reasonable time after the making of the agreement, and before the occurrence of the loss, they tendered the premium and demanded the policy, and should require the delivery of a policy and. payment of the loss. (Perkins v. The Washington Insurance Co., 4 Cow., 645; Lightbody v. North American Insurance Co., 23 Wend., 18; Carpenter v. Mutual Safety Insurance Co., 4 Sandf. Ch. R., 408 ; Rockwell v. Hartford Fire Insurance Co., 4 Abbotts’ Pr., 179.)
    The plaintiffs are therefore not at liberty to say, on this appeal; that this action is at all founded on an executory agreement, by which the defendants became bound to insure them by a policy to be thereafter executed and delivered. They have no right of recovery unless they have established an actual insurance by a policy duly delivered. (Bunten v. The Orient Insurance Co., 8 Bosw., 448.)
    III. The defendants never delivered a policy, and the * plaintiffs have no cause of action founded thereon. It never became operative or of any force as a consummated contract of insurance.
    
      1. The plaintiffs obtained possession of the policy by a fraudulent concealment of the fact that a fire had occurred.
    2. The act of Campbell in giving the policy to the plaintiffs in no wise - bound the defendants,— both Campbell and the defendants being ignorant that, before the plaintiffs handed the premium to Campbell, the condition of the premises had wholly changed.
    3. Until the plaintiffs performed the conditions, they acquired no right; and after the fire the defendants had a right to decline accepting payment; and they did so.
    4. The plaintiffs could not by obtaining manual possession from Campbell, in the manner they did, defeat the condition of the policy which required it be countersigned.
    5. Nor that which declared that it should not be binding until payment of premium.
    6. There never was a moment when defendants were consenting that plaintiffs should have possession of the policy in its then condition, nor without payment of the premium before a loss.
    IV. The conditions of the insurance were not performed. The premium was not paid before the fire, and the policy was never countersigned by the agent. The policy could not become binding unless these conditions were performed, or were waived. (New York Central Insurance Co. v. National Protection Insurance Co., 20 Barb., 468; Jube v. Brooklyn Insurance Co., 28 Barb., 412.)
    1. No agent of the company in New York had authority to waive the expressed conditions of the policy which the defendants had signed in Philadelphia. (Dawes v. N. R. Ins. Co., 7 Cow., 462; Lightbody v. N. Am. Ins. Co., 23 Wend., 18; McEvers v. Lawrence, Hoffm. Ch. R., 171; Chase v. Hamilton Mutt Ins. Co., 22 Barb., 527.)
    2. The agent did not in fact waive the conditions, nor is there any evidence that he attempted to do so.
    V. If the action could be regarded as an equity suit, to compel the execution of a policy and to obtain a recovery for the loss, still the alleged agreement for insurance involved the same conditions, (as the complaint itself admits and avers,) and the plaintiffs were not entitled to recover.
    VI. It is not regarded as essential to the defense, or a necessary condition to the grounds urged on this appeal, but is nevertheless submitted as quite clear, that Campbell, (the broker,) was in the transactions in question, the agent of the plaintiffs, and not of the defendants.
    VIL The testimony of Kelly to the conversation between him and Brewster, who had no authority whatever to act for the defendants, was erroneously received, and the defendants’ exception was well taken.
    Hewson should have been permitted to state the reason why he did not countersign the policy. So also Hewson, the agent of the company, and their surveyor, should have been permitted -to estimate the damage done by the fire.
    The question put by the juror, whether the policy “would have been a perfect policy,” was not competent, and the defendant’s objection should have been sustained. The question sought and elicited nothing but the opinion of -the witness, and that opinion was upon a question of law only. (Frith v. Barker, 2 Johns., 327; Mills v. Hallock, 2 Edw. Ch. R., 652; Allen v. Merchants’ Bank, 22 Wend., 215; 15 Id., 482; Hinton v. Locke, 5 Hill, 437.)
    To answer the question of the juror affirmatively, was to contradict the very terms of the policy, which declared that it should not be valid. (Cortelyou v. Van Brundt, 2 Johns., 357; Hinton v. Locke, 5 Hill, 437; Parsons v. Miller, 15 Wend., 561.)
    VIII. The several requests of the defendants, for specific instructions to the Jury, were proper and in accordance with the law, and the refusal of the Judge to give those instructions was error.
    IX. The charge was itself erroneous:
    1. In the particulars in which it differed from the requests for instructions;
    2. It was error to state that the defendants are unqualifiedly liable, if the facts stated by Kelly were true;
    
      This assumed that the plaintiffs were relieved from the performance of any conditions: 1
    3. The charge treats the possession of the policy by the plaintiffs, as an actual and legal delivery, and as the voluntary act of the defendants;
    4. It disregards wholly the fact that it never was delivered by the consent of the defendants or of Hewson, their agent, in respect to which there was no conflicting evidence;
    5. It also disregards the fact that it was obtained horn Campbell after the Are; and by concealing the fact of the fire;
    6. It substantially directed a verdict for the plaintiffs;
    7. It was erroneous to say that there was no difference between an oral and a written insurance.
    On the contrary, it is submitted that there is no such thing as an oral insurance. (11 Paige, 547, [supra] ; 1 Phillips on Ins., 8; Morgan v. Mather, 2 Ves., 15; Smith v. Odlin, 4 Yeates, 468; Cockerill v. Cincinnati Ins. Co., 16 Ohio R., 148; Perkins v. Washington Ins. Co., 4 Cow., 645.)
    And although there may be a binding verbal agreement upon sufficient considerations to execute a policy, the operative contract by which a party is actually insured, is, and must be, a policy in writing
    The charge was erroneous in instructing the Jury that it was immaterial whether there was- an actual insurance by policy delivered, or an agreement to insure. The form of the action; the mode of trial; the statement of’the-cause of action, and the relief, are different.
    
      E. Pierrepont, for plaintiffs, respondents.
    I. The evidence abundantly sustains the verdict, and the correctness of the law as laid down by the Judge is well settled. (Lightbody v. N. Am. Ins. Co., 23 Wend., 24; Bidwell v. Astor Ins. Co., 16 N. Y. R., 263; Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch., 408; 1 Duer on Ins., 66, § 11; First Baptist Church v. Brooklyn Ins. Co., 19 N. Y. R., 305; 18 Barb., 69; Perkins v. Washington Ins. Co., 4 Cow., 
      645; N. Y. Ice Company v. A. Western Ins. Co., 23 N. Y. R., 357; S. C., 12 Abbotts’ Pr., 417; Rockwell v. Hartford Ins. Co., 4 Id., 179.)
    II. The contract of insurance is like any other contract, and is to be governed by precisely the same rules. (19 N. Y. R., 305.)
    III. Hr. Campbell was the agent of the insurance company. Upon this point there is no contradictory evidence.
    IV. After Kelly had paid his money and received the policy, he learned that it was imperfect, and called upon the agent and asked him to countersign it, which the agent refused to do.
    V. The plaintiff’s right to a perfect and valid policy depended upon the contract, and the defendants’ right to their premium depended upon the same contract. Neither the right to the policy nor the right to the premium depended upon the fire at all—those rights were fixed before the fire, and were in no respect altered by its occurrence. Had there been no fire, the insurance company could ' have collected their premium, and the plaintiffs could have compelled delivery of a perfect policy.
    VI. The insurance contract was complete, and took effect on the first of July. The fact that the fire happened before the time when the premium was paid, and the policy delivered, does not change the rights of the parties.
   By the Court — Robertson, J.

Under the evidence and charge to the Jury in this case, the only embarrassment grows out of that part of the complaint which states a cause of action arising out of the execution of the policy, of which a copy is annexed. The testimony of Kelly, one of the plaintiffs, by itself, shows clearly the making of an independent oral contract to insure, irrespective of any agreement to deliver a policy. The question of the reliability of such testimony, and the making of such contract, were fairly left to the Jury, as matters of fact. . The only questions to be considered in regard to such contract, are those raised by the requests to charge, to wit: Whether, as the parties contemplated the making of a policy in a certain form, the same conditions were grafted on such contract as would be contained in such form, and whether the tender of a policy in such form and demand of the premium, and the refusal of the latter, would not terminate the oral contract. I apprehend no such construction can be given to the original contract: otherwise if the policy had failed to be returned from Philadelphia before the beginning of the risk, the plaintiffs would have been without insurance altogether. It certainly became binding the moment it was made, and the utmost effect that can be given to the additional promise to execute a policy in a certain form, is that, upon the tender of that policy, and a demand of the premium, the oral contract should cease. But, in this ease, no such policy was ever prepared; the only one prepared,* was one that declared it to be only obligatory when ratified by the agent for the defendants. Unless the defendants waived that condition when tendering it, if they ever made such tender, they could not escape from the continuing obligation of the oral contract. In regard to that branch of the case, the charge, of the Court, as well as its refusal to charge, is unimpeachable.

So, too, the refusal to charge that Campbell was not the agent of the defendants, in regard to any material fact, is warranted by the facts. The only important point of his agency was his receipt of the policy. There was evidence that Hewson, the acknowledged agent of the defendants, employed Campbell to deliver the policy, and receive the premium. His delivery of it was, therefore, theirs, as he did not make it until he received the premium. There was no pretense that the delivery to Campbell was as the agent of the plaintiffs; indeed, the defendants contended to the contrary. In regard to the premium, it was actually paid before the policy was delivered, and its prepayment formed no part of the oral contract to insure. It was not necessary, therefore, to establish either its waiver, or any authority to waive it. What the parties intended in regard thereto, is wholly immaterial, if such intent was not conveyed in the language by which the contract was formed The payment of the premium, after the fire, did not affect the agreement between the parties; by the oral contract credit was given to the plaintiffs for it, at least until a proper policy should be tendered, and such premium demanded. The conflicting testimony of the plaintiff, Kelly, and Oampbell’s clerk, (Orary,) left it uncertain whether the premium ever was demanded, and the actual payment corresponded in time with Kelly’s last promise to pay it. Campbell, at all events, in demanding the premium, for which he was the agent of the defendants, never dealt with the plaintiffs as though desirous of ending the oral contract, since he sent to them several times for it. I do not see how, if the defendants chose to carry out their agreement to execute a policy, by receiving the premium, its time of payment, whether before or after the fire, could make any difference. The only point remaining in the requests to instruct, except that as to the interview between one of the plaintiffs and a temporary representative of Campbell, is the refusal of the Court to instruct the Jury that the policy in question was inoperative, because it was not countersigned by the agent of the defendants.

The complaint clearly contains two causes of action, although, perhaps, not distinctly enumerated as such. The statement of the second cause, growing out of the written policy, would necessarily have been insufficient to maintain a legal action, without the allegation of waiver of the countersigning of such policy by the agent for the defendants. In the absence of that, it might have been sustained as an action to compel the countersigning, and then to recover on such countersigned policy, which are causes of action that may be joined. (Bunten v. Orient Insurance Company, 8 Bosw., 448.) But the summons is merely for a money demand on contract, and there is no demand for relief, except damages. The complaint concedes the inefficiency of the policy, unless properly delivered and the signature of the agent waived; while the answer virtually admits its efficiency, if both those contingencies occurred. The request, therefore, to charge absolutely that “ the policy was ineffective and inoperat- “ ive, for the reason that it was not countersigned by the “ agent,” was too broad and general, without the qualification, unless such signature by such agent was waived. A charge in the form requested would have been, in substance, that nothing could atone for the absence of the signature. The defendan ts had a right to aslc that the Jury might be instructed, that unless the plaintiffs proved the waiver, they could not recover, because that was the issue, but not merely and absolutely that a policy in the same form, unsigned by the agent, was not binding, because no such issue was involved, notwithstanding the change in the form of pleading, Juries are confined in their findings to the issues actually made by them. Indeed, the Court, by charging that the plaintiffs were entitled to recover, “ if the policy was delivered to them, nothing remaining to he done, the defendants being competent to waive any “provision in their policy that it should not take effect unless “ certain things were done,” or “ if it was handed to them “as intended to he an effectual agreement binding on the defendants,” virtually conceded the effect of the conditions as to countersigning and prepayment of premium, and every other provision to render it inoperative, contained in it. It virtually said the converse; that if anything remained to be done, required by the policy to be done to make it binding, or if it was not intended to be an effectual agreement binding on the defendants, it was not so. Hot much stress was laid, in the argument, upon this, and no great reliance was probably placed upon it at the trial.

The only remaining point as to which an instruction was requested was, the conversation between one of the plaintiffs and Brewster, a temporary representative of Campbell ; this was to the effect, that what was said or done by the former to the latter, was not a tender of the premium to the defendants. In the view I have taken of this case, it was not necessary for the plaintiffs to tender- any premium ; it was not alleged in the complaint, and the plaintiffs’ case did not depend upon it. As to the exception taken to the admission of the conversation, it was properly overruled. The evidence shows that Campbell, being employed as a sub-agent by Hewson, to deliver the policy and receive the premium, and interested to earn his commissions as a broker, sent to Kelly to notify him the policy was ready; the latter went to the office of the former to procure a change in the policy, and found Campbell unwell in an adjoining office, who employed a friend (Brewster) to receive Kelly’s communication; he did so, wrote a memorandum of it, and put it in the policy, where it was seen by Campbell. It was sent by him to Hewson, but went to Kelly by. mistake. Kelly had a right to show that he had not refused, but only delayed, with the defendants’ assent, to pay the premium ; that he went to Campbell’s office to give his reason for such delay, and that such reason was communicated to Campbell. When they delivered him the policy and returned the memorandum, which return, he had reason to believe, was virtually a denial of his request, he promised to pay the original premium, and paid it at the time. The taking down of such conversation by Brewster, and the making of such memorandum and inclosing it to Campbell, were features in the dealings between the parties, to show that there never had been any intention to abandon the contract of insurance with the plaintiffs. The defendants, at that time, could have sued him for the premium and recovered; there was no reason why they should not be equally held for the insurance, unless, upon a tender of the policy and a peremptory demand by them for the premium, the plaintiffs had refused to pay it. The evidence was admitted in the first place, subject to be stricken out, if not connected with the defendants. The Court instructed the Jury that it was immaterial No application was made to strike it out, but simply a request- to pass upon its effect, while the defendants themselves introduced Brewster and Campbell to testify as to such conversation. Under such circumstances the exception should not prevail.

Hewson’s reasons for not signing the policy were wholly immaterial and properly excluded. The question of the Juror, which was objected to, “ Would it have been a per-“feet policy, if he had paid the premium?” had once already been put and answered, without objection; it was not objected to until repeated, and seems to have been put more with a view either of calling the witness’ attention to the impropriety of sending an imperfect policy to procure the premium, or inducing him to reflect whether he did so, or, perhaps, showing that the signing by the agent had been waived. It certainly was not designed to get at the witness’ opinion on a mere question of law. There is one view in which, even in that aspect, the question was not objectionable. The policy purports to be made in the State of Pennsylvania, and, of course, should be governed by its laws, in its interpretation; the witness had been agent for an insurance company of that State, and might have been familiar with its laws upon that subject; at all events, the objection was not put upon the ground that he was not an expert, which the objector is bound to specify. I have not been able to find any authority for the responsibility of a party for a Juror’s improper question; one has as much right to except to it as another, and neither has the power to withdraw it. It would be rather hard to make either party suffer for the illegal questioning of a Juror. A more appropriate remedy would be to move to strike out the answer, or to call upon the Court to direct the Jurors to disregard it. But in this case the defendants were too late with their objection, after allowing the question to be asked and answered once without it.

Hewson clearly was not proved to be such an expert as to allow him to testify as to estimated damage, if such a mode of proof is admissible at all, and the question put to him to that effect was properly excluded.

From all the circumstances, it appears that the Jury had a right to find, that a valid oral contract to insure was made, determinable on the execution and delivery of a written contract; that such delivery and the rigorous demand of the premium, so as to terminate the oral contract, was delayed until after the fire ; that the premium was then paid, and an imperfect policy delivered, intended to have been made perfect, by the defendants, on the payment of the premium. It is clear that for such premium the defendants, on the 28th of June, intended to have taken the risk of $2,000 for a year; they had a right to stop the credit for the premium and the oral contract, by presenting a perfect policy and demanding the former. They did not exercise the right, and when a loss has occurred, they seek to evade it. Their agent did not put his objection to their liability, at first, upon any ground but the omission to countersign.

The judgment and order denying a new trial must be affirmed, with costs.  