delivered the opinion of the Court. The defendants objected to the ruling of the judge at the -trial, in regard to a question proposed by them to Curtis, a witness for the plaintiff, viz. whether the witness had, after the repairs of the brig Iko bad been made, examined the documents and evidence, to ascertain whether the loss was of such a character and to such an extent that it formed a legal claim on the underwriters, and what opinion he formed on the subject. It seems to us to be altogether immaterial whether he did or did not form any opinion upon the subject. If he did form an opin ion, it was not legal evidence on this trial. It was not offered to contradict any statement which the witness had made upon the trial. It was for the jury, and not for the witness, to form an opinion upon the documents and evidence.
It was also objected, that the verdict is for the whole damage or amount of partial loss that was sustained, whereas the plaintiff proved an interest in only one third of the vessel, and should have recovered for only one third of the partial loss
*263The policy is in the name of Rider, for whom it may concern, and the sum insured is payable to Curtis in case of loss. The plaintiff, in alleging his interest, avers “ that he was at the time of the execution of the policy and at the time of the loss herein after mentioned, owner of and interested in the said vessel to a large amount, to wit, to the value of the sum mentioned in the policy, that is to say, of the sum of six thousand dollars.” This allegation is not strictly supported by the evidence. The declaration was not read at the trial. The plaintiff stated his claim to recover for a partial loss ; the defendants contended that it did not amount to five per cent., and both parties referred to the evidence upon that point. It was proved that the legal title to the vessel was in Curtis, and others, for whom Curtis was legally .authorized to act, but that the plaintiff and Blanchard and Wightman, had an equitable interest in her, arising from an executory contract, made on November 6, 1833, which was in writing and was proved at the trial to have been made between them and Curtis in behalf of himself and the other owners. By that contract Rider, Blanchard and Wightman, agreed to purchase the Iko for 5500 dollars, 2000 to be paid in cash, and the remainder at subsequent periods, for which they gave their joint and several promissory notes. They paid the 2000 dollars, and received the vessel into their possession ; and they were to keep her insured, and the policy was to be payable, in case of loss, to Curtis. If the price were paid according to the agreement, the legal title was to be conveyed to Rider, Blanchard and Wightman. It is very clear therefore that they had an insurable interest in the vessel, in virtue of this contract and the proceedings under it. If the vessel had been lost while she was in their possession and without insurance, they would have lost the 2000 dollars which they had paid, and would have been liable for the rest of the price, for which they had given their promissory notes. They were all interest ed in her at the time when the policy was made, and when the loss happened. But it was proved that Blanchard and Wight-man, after the loss, viz. on May 21, 1835, assigned their interest to Rider. So that he only had any concern in the subject matter of the insurance after that time. The tenon *264was brought in September, 1836, and at that time the plain tiff was the only person interested in the policy. The suit would have been properly commenced in his own name, even if he never had been interested in the vessel ; but hr such case he should have averred and proved for whose account the policy was made, and in whom the interest at the time of the loss really was. Under the facts and circumstances of this case the plaintiff might have'alleged, that he made the contract in his own name, but for the use of himself and Blanchard and Wightman, who were jointly interested with him at the time when the policy was made and when the loss happened; that they had, after the loss and before the action was commenced, assigned their interest to him; and that the suit was brought for the benefit of himself only, inasmuch as Blanchard and Wightman were no longer interested with him in the amount to be recovered upon the policy. The evidence produced would have supported a declaration to that effect. Now there was no objection made at the trial, that there was any variance between the evidence and the declaration. It was not until the jury returned with their verdict, that the want of interest, or variance, was suggested. If there had been such an objection, an amendment would have been granted, under the circumstances, without terms. And since the parties have agreed, “ that the Court may grant a new trial, or confirm the verdict and render judgment upon it, or reduce it, or order or do whatever may appear to be right in the case,” according to the evidence, we are of opinion, that inasmuch as the cause was tried upon its merits, without any regard to the form or manner in which the plaintiff stated his claim, the defendants must be held to have waived all objection to the declaration. The cause proceeded on the ground, that the plaintiff should recover if the loss amounted to five per cent. The plaintiff has established his right to recover more than that amount, by the vérdict. As Blanchard and Wightman have assigned their parts to the plaintiff, he will not be accountable to them. By the terms of the policy, the money was to have been paid to Curtis ; but as he has received bis pay for the price, from the sale of the vessel itself, the plaintiff will hold the proceeds of the policy for his own use.
*265The policy was made by the defendants with the plaintiff. He had a right to enforce it in his own name, for the benefit of whomsoever it concerned ; or the action might have been brought in the name of the cestui que trust. If brought in the name of the agent, the declaration should state who were the real parties in interest at the time when the policy was made and at the time of the loss ; for no other persons would be entitled to recover upon the policy. The underwriters are entitled to have it truly stated on the record, whose interest the policy was intended to protect, although the action be brought in the name of the person who effected the policy, and although he be not himself interested. The parties really interested are to be considered so far parties to the suit as that their declarations (while their interest continues) shall be evidence for the defendants. Bell v. Ansley, 16 East, 141.
In the case of Godin, Guion & Co. v. London Assurance Co. 1 Burr. 489, the action was brought in the names of the insurance brokers. The policy was expressed to be made, “ as well in their own names, as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all.” The policy was for the benefit of John Tamesz. He was the plaintiff in effect. So in Munson v. New England Ins. Co. 4 Mass. R. 88, the action was in the name of the agent. So in Stirling et al. v. Vaughan, 11 East, 819, it was in the names of the agents, for the benefit of the captors of a prize. On the other hand, the case of Lazarus v. Commonwealth Ins. Co. 6 Pick. 76, was sued by the owner in his own name, on a policy effected by his agents, Smith & Stewartson.
In the case at bar no fraud was suggested. The plaintiff was fully authorized to make the insurance in the manner in which it is expressed in the policy, and the plaintiff has proved that those for whom the insurance was made, had an insurable interest at the time of the making of the policy and at the time of the loss, and that he is legally their representative. He may therefore recover. What he is to do with the money, is not the concern of the defendants, and the fact that those who were originally interested with him at the time of making the policy and at the time of the loss, have since au*266thorized him to keep their parts for his own use, does not furnish any ground of defence to the defendants. No strangers to the original contract of insurance are introduced, as was done in Carroll v. Boston Mar. Ins. Co. 8 Mass. R. 515.
The defendants however claim to deduct from the judgment, the amount of the premium note, which they produce and aver to be unpaid, and also all sums due to the company from the assured at the time when the loss became due. But the plaintiff’s counsel objects to this, because these demands were not filed in the case, and because such set-off, to that extent, might defeat the lien of the attorney, which by the Revised Slat. c. 88, § 28, he is entitled to have on the execution. for fees and disbursements.
We think that the defendants, by the terms of the contract, should have an opportunity to avail themselves of their claims which are therein secured or provided for, in some way or other. It cannot be now allowed under the Revised Stat. c. 96, § 16, because no statement of the cross demands has been filed. And the plaintiff should have an opportunity to contest the claims so offered.
But we all think that this action should stand continued for judgment, until the defendants may sue the plaintiff for the pre mium note and for any other sums which were by the terms of the policy to be allowed on settlement of this loss. This opinion is not to be construed as impairing the lien of the attorney for fees and disbursements, on the execution which may issue upon the judgment, when it shall be rendered, in the case at bar.
With this explanation the parties will probably be able to adjust their controversies relating to this policy, without any further litigation.
The opinion of the Court is, that the motion for a new trial be overruled, and the judgment will be for the plaintiff, conformably to the verdict.