The argument in this case has, by the agreement of counsel and with the sanction of the court, been confined to the question whether the truth of the exceptions alleged by the defendant at the trial is established, leaving the question of the validity of those exceptions, in case their truth is established, to be argued hereafter.
Upon a careful comparison of the exceptions, as alleged, with the certificate of the presiding judge, stating his reasons for disallowing them, and with the evidence reported by the commis*192sioner, all the variations appear to be merely verbal or quite unimportant, and do not affect the substantial truth of the exceptions, or the right of the excepting party to have the rulings excepted to revised by this court. Bates v. Santom, 116 Mass. 120. Sawyer v. Yale Iron Works, 116 Mass. 424.
1. The judge states that in the report of the testimony of Mrs. Markey, the plaintiff, language is omitted which he deemed material. The only omission which he specifies is that “ in addition to what is reported by the bill, as having been said by the plaintiff about taking the policy to Banks, she used the words, ‘ and leave it there.’ ” But her testimony, as reported in the bill of exceptions, is not substantially varied by the omission of these words. It clearly implies that the plaintiff and her husband, at the interview in question, directed Wells to leave the policy with Banks — especially in that part of it in which she testifies to what they did immediately after she learned that Wells had not given the policy to Banks. And the bill of exceptions shows that the very words were attributed to the plaintiff by the presiding judge in his charge to the jury, without any objection being made to the accuracy of his statement of her testimony in this respect.
2. The omission to state that Wells testified, in very words, that he had authority to deliver policies without payment of the premium, is also immaterial; for the report of the testimony, of the requests for instructions, and of the instructions given, accords with the statement in the judge’s certificate, that the words “right” and “ authority ” were treated throughout the trial as synonymous.
3. The variation between “ not much of any worse ” and “ not much, if any, worse,” is hardly greater in meaning than it is in sound. To hold an inaccuracy so trifling, and so likely to escape the utmost vigilance, to be fatal, would be to render the remedy provided by the statute valueless.
4. As the bill of exceptions purports to state all the evidence that was offered at the trial, it was unnecessary and would have been superfluous to state what was not offered.
5. The bill of exceptions shows that Wells testified that he was the agent to procure applications for the defendant “ for Mr. Jordan; ” and this implies, as the counsel foi the defendant admits, that Wells was appointed by Jordan,
D. Foster, for the defendant. J. W. Perry f P. Saunders, for the plaintiff.The facts that Jordan was present at the trial and heard the testimony of Wells, and was not called as a witness, were wholly immaterial, unless they were brought to the attention of the jury at the trial, which does not appear by the certificate of the judge or otherwise.
6. It does appear, beyond dispute, that Wells the witness and Wells the sub-agent were the same person.
7. The exceptions, as stated in the bill tendered, are in terms limited to the rulings and refusals to rule upon the exceptions to evidence and the requests for instructions, and therefore do not cover any ruling or instruction which the judge does not admit by his certificate to have been duly excepted to.
Truth of exceptions established.
The case was argued on the exceptions in January, 1875.
Gray, C. J.The plaintiff undertook to prove a contract by !he defendant to insure -|3,000 on the life of her husband, payible to her: 1st, by a policy executed by the defendant, and deivered by Wells as its agent to the plaintiff; 2d, by a contract a insure independently of any policy.
1. Upon the issue whether the policy was a contract binding the defendant, one question submitted to the jury was whether Wells “ did deliver the policy to the plaintiff, intending to vest the property in her.”
Upon this question, the testimony introduced by the plaintiff did not substantially differ from that introduced at the former trial, and which this court, for reasons fully stated in 103 Mass. 78, which upon reconsideration we are satisfied with, and do not propose to recapitulate, held insufficient to warrant a jury in finding such intention.
It amounted to this and no more : That the husband being ill at home, Wells came to the house, bringing the policy with him, and passed it to the husband, saying he had brought him his policy; that the husband said he was glad of it, he had been expecting it for some days past; that he took the policy and read it over, and handed it to the wife, saying, “ Eliza, there is your policy,” and she took it, glanced it over, and laid it upon the *194tables that the husband told Wells “that he was not well enough to go out and get the money to pay for the policy, that he had made an arrangement with Mr. Banks over at the shop to get the money and pay it to him,” and Wells said “ he would go directly to Mr. Banks and get the money for the policy;” that, when Wells started to go out, the wife took the policy from the table and passed it to him, saying, “ If you are going to Mr. Banks for the money you may need the policy, and may as well take it and leave it with him,” and Wells took the policy ; that her object in giving the policy to Wells was that she supposed he was going to Banks to get the money, and Banks would want to see the amount; and that upon her learning the next morning from Banks that the policy had not been delivered to him by Wells, the money was immediately sent to Boston for the policy.
The direction to leave the policy with Banks had no tendency to prove that the policy had been delivered; for it was equally consistent with the alternative that it was to be delivered to Banks, for the use of the plaintiff, upon his payment of the premium to Wells.
The testimony of the plaintiff that, when she took the policy from her husband in the presence of Wells, she understood it was delivered to her to keep, whatever its legal competency and weight might be on the question of her own intention, had no tendency to prove the intention of Wells.
The testimony of Wells, upon the question whether he had authority to deliver policies without payment of the premium, added nothing to the evidence upon the question whether he actually intended to deliver this policy.
The whole evidence was in our opinion insufficient to warrant the jury in finding that the policy had been delivered so as to constitute a binding contract.
2. The plaintiff’s own testimony, already stated, shows that the only form of contract of insurance, contemplated by the parties, was by a policy issued by the defendant upon the written application of the assured, and there is no evidence whatever that the defendant intended, or was understood by the assured or the plaintiff to intend, to make a contract of insurance in any other form. Real Estate Ins. Co. v. Roessle, 1 Gray, 336. Sanborn v. Fireman's Ins. Co. 16 Gray, 448, 454. Hoyt v. Mutual Benefit *195Ins. Co. 98 Mass. 539. Heiman v. Phœnix Ins. Co. 17 Minn. 153.
This point, having been presented by the defendant in a distinct request for instructions at the trial, for the manifest purpose of reserving the question, and overruled by the presiding judge, is clearly open upon these exceptions. Esty v. Wilmot, 15 Gray, 168. Markey v. Mutual Benefit Ins. Co. 103 Mass. 78, 87.
The jury having been erroneously instructed as to the sufficiency of the evidence upon each of the grounds upon which the plaintiff sought to recover, the defendant’s
Exceptions must be sustained.