The plaintiffs seek to recover of the defendants the amount of certain assessments on a policy of insurance originally issued to Phelps, and alleged to have been transferred by assignment to the defendant. As an essential and primary element in the case, it was necessary to show an assignment of the policy by Phelps to the defendant. The original insurance was on the interest of Phelps in the property insured; the defendant was sought to be charged as standing in the right of Phelps, and was liable, if at all, for assessments due to the com. *552pany under and by virtue of the original contract of insurance, the obligations of which, as assignee, he is alleged to have assumed. He could not, upon the case stated in the declaration, be charged upon a contract of insurance originally made by the plaintiffs with him.
This being the relation of the parties, as appears by the pleadings and the evidence at the trial, the question is whether the rulings and instructions given to the jury were correct. If the case had gone no further than the ruling of the judge in the first instance, that, upon the evidence adduced by the plaintiffs, they could not maintain their action, there would have been some plausible ground for exception; but a special verdict having been taken at their request, and found against them, upon facts essential to the maintenance of their action, under instructions to which we can see no valid objection, they cannot now avail themselves of any error which may have existed in the original ruling of the court. The verdict of the jury has rendered that ruling wholly immaterial.
The first instruction asked for, though not adopted in the same form of words used by the plaintiffs’ counsel, was in substance given, unless the plaintiffs intended to ask the court to instruct the jury to render a verdict on the admission of the defendant alone, without reference to the other facts in the case material to the issue, which would have been clearly erroneous.
The remaining. instruction asked for by the plaintiffs was properly refused, because it was ambiguous in its terms, and calculated to mislead the jury. The real issue, as made up and presented by the plaintiffs’ counsel was, whether Sutton and Buffum had entered into a contract, by which the former had agreed to transfer his interest in the policy to the latter; and it was put in precise and accurate language by the court in their instructions. To ask, that the jury should be directed to inquire whether Sutton and Buffum understood that the property in the policy was transferred, was either precisely equivalent to the instruction given by the court, though in a less intelligible form, or it was wholly immaterial; and in either case the refusal to give it was right. Exceptions overruled.