also adjudicate and compel the payment of the loss;' and the fact that the party has a remedy at law, will not be sufficient to oust the court of its jurisdiction, as the party has a right to have the contract enforced by a delivery of the policy, and the court having jurisdiction for one purpose, will, to prevent circuity of actions, compel a payment of the loss under the policy." In such cases, the assured has his election of remedies. He may proceed at law upon the contract to insure, or in

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assumed by its recognized agents to exist. It is contended, however, that there is a statute of Massachusetts which, in effect, requires that all contracts of insurance shall be in writing, namely: chapter 196. section 1, of the acts of Massachusetts for 1864, which provides as follows: 'In all insurance against loss by fire hereafter made by companies chartered or doing business in this Commonwealth, the conditions of insurance shall be stated in the body of the policy, and neither the application of the insured nor the by-laws of the company shall be considered as a warranty or a part of the contract, except so far as they are incorporated in full into the policy and appear on its face before the signatures of its officers.' It is evident that the object of this statute was, not to prohibit parol contracts of insurance, but to prohibit the practice of referring to a set of conditions not contained and set out in the policy, but embodied in some other paper or document. The statute was passed for the benefit of the insured, in order that they might not be entrapped by conditions to which their attention might never be called, and which they might inadvertently overlook and disregard if they were not embraced in their policies. It applies in terms only to policies, that is, to written contracts of insurance; and has no application whatever to parol insurances. It does not prohibit them nor affect them in any way. Other points were taken by the plaintiff in error, to the effect that there was no evidence that the agent ever had authority to make other than a written contract, or that a completed oral contract was ever made as stated in the declaration, or that the insurance company ever authorized its agent to delegate to another the power to make insurance. An examination of the bill of exceptions shows that it does not contain all the evidence which was adduced. Whether the omitted portions would furnish any light on these points we are unable to say. But we think that the evidence which is spread upon the record was sufficient to go to the jury, and we see no error in the charge of the court in this behalf. The agent who acted in this case had been accredited as the general agent of the company in the Commonwealth of Massachusetts from the beginning of 1870, and had during all that time been transacting the business of the company as such agent in the city of Boston. His mode of doing business was not materially different from that of other agents or companies. He had during all that period been assisted by a clerk or clerks who attended to the business in his absence, which the company must have known. These and other facts sufficiently shown by the evidence entirely justify the charge of the court, and the finding of the jury is conclusive."

'Lightbody v. N. American Ins. Co., 23 Wend. (N. Y.) 18; Hallock v. Com. Ins. Co., 26 N. J 268; Carpenter v. Mut. Ins. Co., 4 Sandf. Ch. (N. Y.) 408; Union Mut. Ins. Co. v. Com. Ins. Co., 2 Curtis (U. S.) 254; Perkins v. Washington Ins. Co., 4 Cow. (N. Y.) 645; Suydam v. Columbus Ins. Co., 18 Ohio, 659.

'Jones v. Provincial Ins. Co., 16 U. C. Q. B. 477; Ellis v. Albany City F. Ins. Co., 50 N. Y. 402.

'Jones v. Provincial Ins. Co., ante. ; Commercial Union Ins. Co. v. The Union Ins. Co. 19 How. (U. S.) 321; Trustees, etc., v. Brooklyn F. Ins. Co., 19 N. Y. 205; Andrews v. Essex F. M. Ins. Co., 3 Mas. (U. S.) 6; Tayloe v. Merchants' F. Ins. Co., 9 How. (U. S.) 390. In Ellis v. Albany City F. Ins. Co. ante, GROVER, J., said: "Whatever doubts may formerly have existed as to the validity of parol contracts of insurance, made by insurance companies authorized by their charters to make insurance by issuing policies, it is now settled that they are valid. It is equally well settled that parol contracts of such companies to effect an insurance

equity to compel a delivery of the policy, and a payment of the loss. Generally, it is believed that the safest and best remedy is to be found in a court of equity.' An agreement by parol to insure, and that the risk shall attach pending the application, is good,' or a parol agreement to make a policy by a person authorized to do so, is binding upon the company, and a court of equity will compel a specific performance of the contract, and where a definite time is agreed upon, within which it shall be issued, no demand therefor is necessary."

by issuing policies, are valid, and will be enforced by compelling specific performance by the company, or in an action for a breach of the agreement; in either of which a recovery for a loss of the property agreed to be insured will be awarded to the plaintiff." Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 96; Ide v. Phenix Ins. Co., 2 Biss. (U. S.) 333; Mills v. Albion Ins. Co., 4 C. C. (Sc.) 575; Angel v. Hartford F. Ins. Co., 59 N. Y. 171; Shearman v. Niagara Fire Ins. Co., 46 N. Y. 530; Kelly v. Com. Ins. Co., 10 Bos. (N. Y.) 82; Baxter v. Massasoit Ins. Co., 13 Allen (Mass.) 320; Hamilton v. Lycoming Ins. Co., 5 Penn. St. 339; Braydon v. Appleton, etc., Ins. Co., 42 Me. 259; Davenport v. Peoria, etc., Ins. Co., 17 Iowa, 276; Audubon v. Excelsior Ins. Co., 27 N. Y. 216.

1Jones v. Provincial Ins. Co., ante; Dunning v. Phenix Ins. Co., 68 Ill. 414; Gerrish v. German Ins. Co., 55 N. H. 355; Kelly v. Com. Ins. Co., 10 Bos. (N. Y.)

82.

In Audubon v. Excelsior Ins. Co., 27 (N. Y.) 216, the court held that a verbal agreement to insure property against fire is valid, where all the terms have been agreed upon except the rate of premium, where a former rate had been fixed, and nothing was said about any change therein, is valid and binding, the presumption being that the same rate would continue, and the company under such a contract was held liable for a loss occurring the next day after the contract was made, and before the policy had been delivered. In Franklin Ins. Co. v. Hewitt, 3 B. Mon. (Ky.) the defendant company agreed to deliver the plaintiff a policy covering certain property, the terms and conditions of the insurance being agreed upon, but it sent a policy varying from the contract, and a loss occurring within the insurance contracted for, but which was not covered by the policy, it was held that a recovery might be had according to the contract agreed upon, it being shown that they had never seen the policy until after the loss, and were not aware of the variance between the policy and the contract. In Davenport v. Peoria Ins. Co., 17 Iowa, 276, an agreement for insurance was entered into through the defendant's agent, and on the next day a policy was delivered and received by the plaintiff, dated as of the previous day. Before the policy was delivered a loss occurred, and the company was held liable therefor, although the charter of the company provided that all policies should be subscribed by the president and signed and sealed by the secretary, and that the premium was not paid until the policy was delivered. In Goodall v. N. E. F. Ins. Co., 25 N. H. 169, the secretary of the defendant company delivered to the plaintiff a memorandum, stating that the directors consented to continue in force a policy previously issued to him by the company, and that it might cover certain property not embraced in the previous policy, and it was held that this certificate was evidence of a valid contract of insurance, upon which the defendants were liable. See also, State, etc., Ins. Co. v. Porter, 3 Grant's Cases (Penn.) 123, and Eureka Ins. Co. v. Robinson, 56 Penn. St. 256, in which it was held that in such cases it will be presumed that the contract entered into is that ordinarily and usually expressed in the form of policy employed by the company at the time when the contract was made, and that the declaration may set forth the contract in accordance with such form. But if any special contract differing therefrom was made, it should be specially set forth. Davenport v. Peoria Ins. Co., ante.

Kelly v. Commonwealth Ins. Co., 10 Bos. (N. Y.) 82; Commercial Mut. Marine Ins. Co v. Union Mut. Ins. Co., 19 How. (U. S.) 318; N. England, etc., Ins. Co. v.

'West'n Mass. Ins. Co. v. Duffy, 2 Kan. 347.

How proved.

SEC. 13. A contract of insurance, or to insure, is established by the same class of proof required to establish any other contract. If there has been any correspondence between the parties, relative to the matter, it is competent evidence either to prove or disprove the fact that a contract. was made, but is not always conclusive. The burden of establishing it is upon the assured, and he must satisfy the jury that a complete and perfect contract was made;' that an agreement was entered into,

Robinson, 25 Ind. 536; 5 Bennett's F. I. C. 62; Union, etc., Ins. Co. v. Commercial, etc., Ins. Co., 2 Curtis (U. S.) 524. But in all such cases, in order to entitle the party to specific performance by issuance of a policy, a valid contract must be established, and the party must show that he has complied with all the conditions thereof. Thus, where the plaintiff did not establish a contract entered into with an authorized agent of the company, and payment of the premium, the relief was denied; Deming v. Phanix Ins. Co., 68 Ill. 414; but payment of the premium, as well as other conditions, may be waived as a condition precedent, but the burden is on the party applying for relief to establish the waiver. Davenport v. Peoria Ins. Co., ante. In Gerrish, etc., v. German Ins. Co., 55 N. H. 355; 5 Bennett's F. I. C. 726, the plaintiff made a contract with the defendants' agent to insure a quantity of wool for $3,500, for one year, commencing Sept. 30th, 1873, at noon, and the agent agreed to procure and deliver a policy therefor. Oct. 1st, 1873, the wool was destroyed by fire. No policy had been delivered. The plaintiff made preliminary proofs, and demanded a policy and payment of the loss, which was refused. A bill in equity was brought to compel a delivery of the policy, and for payment of the loss, and the court held that he was entitled to a decree of specific performance, compelling a delivery of the policy, and to prevent circuity of action, to compel a payment of the loss.

'Strohn v. Hartford F. Ins. Co., 37 Wis. 625; 19 Am. Rep. 777; 5 Bennett's F. I. C. 491; McCullough v. Eagle Ins. Co., 1 Pick. (Mass.) 280; Trustees, etc., v. Brooklyn F. Ins. Co., 19 N. Y. 305. In Ide v. Phenix Ins. Co., 2 Biss. (U. S.) 333; 5 Bennett's F. I. C. 318, the agent was familiar with the property, and offered to insure it for three years for a certain premium, which was paid to him by the plaintiff. The policy was not made, but the insured called for it frequently, and failing to get it, soon after left the State. Before the agent had remitted the premium to the company, the property was burned. The agent appropriated the money to his own use, and never reported the risk. The loss was promptly reported to the agent, who promised that it should be paid at various times between the autumn of 1864 and 1866. In 1866, the agent notified the assured that the company would not pay the loss. The court held that the contract was binding upon the defendants, and that the fact that proofs of loss were not made, or the action brought within a year, was not fatal to a recovery, as the acts of the agent amounted to a waiver of compliance with the conditions. In Banbie v. Etna Ins. Co., 2 Dill. (U. S. C. C.) 156; 5 Bennett's F. I. C. 526, the defendants' agent, who was supplied with policies signed in blank, entered into a contract with the plaintiff to insure certain property for him to the amount of $4,000, for six months, and issued a policy to him therefor, and renewed it for six months after the policy expired. An agreement, however, between the plaintiff and the agent was shown, by which the agent agreed to renew every six months, and draw for the premium. He did not do so, however, and the property was burned. The court held that the contract was binding upon the company, and that the plaintiff could not be affected by any private instructions given the agent, or by any secret limitations upon his powers. See also, Taylor v. Germania Ins. Co., 2 Dill. (U. S. C. C.) 282; 5 Bennett's F. I. C. 454; also, Hotchkiss v. Germania Ins. Co., 5 Hun (N. Y.) 90, in which, under a very similar state of facts, a similar doctrine was held. See Sanborn v. Fireman's Ins. Co., 16 Gray (Mass.) 448. As bearing upon the effect of secret instructions to the agent, the case of Citizen's Mut. F. Ins. Co. v. Sortwell, 8 Allen (Mass.) 217, is a strong one. In that case the directors issued instructions to their agents

and that nothing essential to the contract was left open for future determination,' and the proof must be clear that such a contract was made, or an action will not be upheld upon it at law, nor will it be enforced in equity. If the premium is not fixed, and there is anything to show that the amount was in dispute, so that the presumption as to former or customary rates does not apply, no contract exists; or if any essential details of the contract are not agreed upon,' as if the apportionment of the risk is not determined,' or if the risk is not as described by the assured, or if the policy has not been accepted, or its

that distilleries were not insurable. The agent, however, in defiance thereof, issued a policy to the plaintiff upon his distillery, and received a premium note from him therefor. The court held that the policy was obligatory, notwithstanding the instructions, and formed a good consideration for the note. See also, Franklin F. Ins. Co. v. Massey, 33 Penn. St. 221, where the agent was directed to cancel a policy, but neglected to do so, and the company was held responsible for a loss occurring thereafter.

1Strohn v. Hartford F. Ins. Co., ante; Neville v. Merchants', etc., Ins. Co., 19 Ohio, 452; Eliasen v. Hurshaw, 4 Wheat. (U. S.) 228; Ocean Ins. Co. v. Carrington, 3 Conn. 357; Hallock v. Ins. Co., 27 N. J. 268; Belleville Mut. Ins. Co. v. Van Winkle, 12 N. J. Eq. 333.

Neville v. Merchants', etc., Ins. Co., 19 Ohio, 452. In Perkins v. Washington Ins. Co., 4 Cow. (N. Y.) 645; 1 Ben. F. Ins. C. 148, the defendants' agent was authorized to receive applications for insurance, and, with the premium, forward them to the insurer, when, if the company was satisfied with the risk, and recognized the rate of premium, a policy was to be issued binding as of the time of the agreement. The agent received a premium at the established rate of the plaintiff, under an agreement to insure his goods, but before the application was forwarded by him, a loss occurred, and the defendants claimed that, as they had not assented to the premium, no perfected contract existed. But the court held that, as the rate was the usual rate charged by the company, it could not arbitrarily object thereto, or reject the risk after a loss. Woodworth, J., in a very able opinion, discussed the relative rights of the assured and the insurer, in such cases, and clearly illustrated the rule, that a court of equity would, in all cases, enforce a contract entered into by the insurer's agent, within his apparent power, when there was no fraud on the part of the assured, and a loss had intervened, which was evidently the only ground which induced the action of the company. The court decreed payment of the amount of the loss. See also, to same effect, Woodbury Savings Bank v. Charter Oak Ins. Co, 31 Conn. 518; Leeds v. The Mechanics' Ins. Co., 8 N. Y. 351; Hallock v. Commercial Union Ins. Co., 26 N. J. 268; Lightbody v. N. American Ins. Co., ante, as to powers of an agent to bind the company by such contracts.

'Orient Mut. Ins. Co. v. Wright, 23 How. (U. S.) 401; First Baptist Church v. Brooklyn F. Ins. Co., 28 N. Y. 153. In Christie v. N. British Ins. Co., 3 C. C. (Sc.) 360, Lord Justice CLERKE said: "If the premium in this case had been agreed on, the insurance would have been effected, although no policy was delivered; but the premises here cannot be held to have been insured, the premium never having been determined on, and never having been fixed by the Phoenix office."

Phlato v. Merchants', etc., Ins. Co., 38 Mo. 248; Mut. Life Ins. Co. v. Young, 5 Ins. L. J. 17; Winnisheik Ins. Co. v. Holzgrafe, 53 Ill. 516; Bidwell v. St. Louis Floating Dock Ins. Co., 4 Mo. 42.

B

Sandford v. Trust F. Ins. Co., 11 Paige Ch. (N. Y.) 547.

6 Chase v. Hamilton, 20 N. Y. 52; Watt v. Ritchie F. D., (Sc.) 43; Mead v. Westchester Ins. Co., 64 N. Y. 453; Goddard v. Monitor Ins. Co., 108 Mass. 56; 5 Bennett's F. I. C. 377.

terms assented to;' if the duration of the risk is not agreed on,' if the premium has not been paid, when payment thereof is a condition precedent, or if the assured has once refused to receive the policy, he cannot afterwards insist upon its delivery without the insurer's consent.*

It is competent for the company, when the evidence is doubtful as to whether a contract by parol has in fact been entered into, to prove that it was the usual course of business of other insurance companies, acting through their agents in that place, to receive propositions for insurance by parol, and that when accepted, the transaction was entered and recorded on their books as an agreement between the parties for insurance, upon the terms and conditions of the policies in use by such companies, a policy to issue at any time on request, and that the parties contracted in reference to such usage."

All conditions precedent must be complied with.

SEC. 14. In order to make a perfected contract binding upon the parties, all conditions precedent must be complied with. Thus, the plaintiff applied March 16, 1849, for $1,500 insurance upon his factory, etc., in the defendant company. The defendant's secretary accepted the offer at three per cent., to which complainant assented by letter; but it miscarried; and, subsequently, complainant saw the secretary, mentioned the fact that he had sent the letter, requested a policy, and offered to pay the premium. The secretary replied that he did not know then how much the balance would be; that complainant might send it at any time, and also assured complainant that his property was then insured; that he would make out his policy and send it right away. It was made April 18th, and on the 20th the secretary enclosed a premium note to complainant, requesting him to sign and remit it with $7.20 cash, promising to send the policy. The note was one of the usual printed blanks, requiring complainant to procure a surety for its payment. The letter and note were deposited in the post-office at Belle

1 Wood v. Poughkeepsie Ins. Co., 32 N. Y. 619; 5 Bennett's F. I. C. 60; Lindaner v. Del. Mut. Ins. Co., 13 Ark. 461; Rose v. Medical, etc., Association Soc. 20 Scot's Jurist. 534; Real Estate, etc., Ins. Co. v. Roessle, 1 Gray (Mass.) 335.

2

* Strohn v. Ins. Co., ante; Tyler v. New Amsterdam Ins. Co., 4 Rob.(N. Y.) 151. 'Train v. Holland Purchase Ins. Co., 62 N. Y. 598; Berthoud v. Atlantic Marine & F. Ins. Co., 13 La. 539; St. Louis Mut. Life Ins. Co. v. Kennedy, 6 Bush (Ky.) 450; Walker v. Provincial Ins. Co., 7 Grant's Ch. (Canada) 137; Hieman v. Phoenix Mut. Life Ins. Co., 17 Minn. 153; Hardie v. St. Louis Mut. Ins. Co., 26 La. An. 242; Collins v. Ins. Co., 7 Phila. (Penn.) 201; Myers v. Keystone Mut. Life Ins. Co., 27 Penn. St. 268; Rogers v. Charter Oak Ins. Co., 41 Conn. 97.

Schwartz v. Germania Life Ins. Co., 18 Minn. 448; Ocean Ins. Co. v. Carrington, 3 Conn. 357.

Etna Ins. Co. v. N. W. Iron Co., 21 Wis. 458.