The only exception in these cases is to the refusal of the presiding justice to give the jury certain instructions requested by the defendants. No exception was taken to the instructions given.
1. There was evidence to warrant the jury in finding verdicts for the plaintiffs. The jury might well find that the agent of the defendants, when the policies of insurance were about to expire, agreed with the agent of the plaintiffs to hold the policies in force as valid contracts of insurance on the terms stated in them for an additional time for the purpose of enabling the plaintiffs’ agent to ascertain on what terms they wished to take policies in writing, and until one of the parties should terminate the temporary arrangement; or, under another possible construction of the contract, until the arrangement should end by the expiration of the reasonable time which was agreed to be allowed for that purpose, and that while the policies were so held in force the property insured was burned.
*3722. It is conceded by the defendants that, after the allowance of the amendments to the declaration, the jury could not properly have been instructed that there was a variance between the evidence and each and every count of the declaration. A request was then made for a ruling “ that there was no evidence which would warrant the jury in finding a verdict for the plaintiffs on the first, second, third, or fourth counts of the declaration respectively.” We understand this to have been a request in regard to each count considered by itself alone. If, as applied to either count, it embodied a correct' proposition of law, and if the defendants were prejudiced by the failure to give it in terms, the exceptions must be sustained.
The first and third counts describe the contract relied on as an agreement to insure the property for one year from March 20, 1892. We are of opinion that the arrangement between the agent of the plaintiffs and the agent of the defendants, in regard to which the testimony was somewhat contradictory, cannot be interpreted as a contract to insure property for one year, either on the terms stated in the policies of insurance which expired about that time, or on any other terms. It was understood by both parties as a temporary arrangement incidental to a contemplated contract in writing soon to be made, or to future negotiations for such a contract. We are of opinion that there was evidence which would have warranted the jury in finding for the plaintiffs on either the second, fourth, or fifth counts. The testimony gave the jury a great deal of latitude in determining what the contract was. There was' quite a variety of statement in regard to what occurred between the agents of the parties, and there was testimony from numerous witnesses who were not in entire accord in regard to the usage of insurance agents when asked to hold a policy which is about to expire. Assuming, as we must from their verdict, that the jury believed the testimony which was favorable to the plaintiffs, it seems probable, in view of the relations existing between the two agents and the proximity of their offices in the same building, that the agreement was found to be as stated in the fourth count of the declaration, that the insurance should be continued in force “ until terminated by notice from one party to the other,” it being understood that the arrangement was only temporary. Ho demurrer *373was filed, and no objection was taken to the form or sufficiency of the allegations in either count of the declaration.
In regard to the first and third counts, the defendants were right in their contention. The important question is whether they were injured by the refusal to give in terms the instructions requested. If we were warranted in saying that the jury may have found for the plaintiffs on either of these counts instead of one of the others, we should be constrained to sustain the exceptions. Ordinarily, if there is no evidence to warrant a verdict for the plaintiff on a particular count of a declaration, the defendant has the right to have the jury so instructed if he requests it; but in the present case it sufficiently appears that the jury could not have gone astray on account of the failure to give this instruction in terms. The only contract relied on was oral, and the judge gave the jury very full instructions in regard to the rights and powers of insurance agents to make oral contracts of insurance. He told them that, unless some authority is given beyond what was shown in this case, “ an agent has only the power to make valid oral contracts of insurance for some temporary purpose incidental to the issuing of policies for long periods of time.” He then referred to cases of emergency — Sundays and holidays — mentioned by some of the witnesses, and said he did not think the witnesses intended to say that those were “ the only eases in which such temporary valid oral contracts of insurance might be made.” He referred to the different possible views of the arrangement between the parties, and while he did not in express words say that the jury could not find such a contract as is alleged in the first or third counts of the declaration, the whole tenor and purport of the charge were, we think, such that the jury must have understood that they could not find any other valid contract than a temporary contract incidental to the issuing of a policy, and therefore that there could be no finding for the plaintiffs under the first or third counts. We think the defendants were not injured in this part of the case.
3. There was evidence to warrant the jury in finding that the defendants’ agent had authority to make an oral contract of insurance such as the plaintiffs relied on. That insurance agents have long been accustomed to make such contracts was *374testified to by numerous witnesses, and it is a fact of common knowledge. That such contracts are legal and binding has often been decided by the courts. Sanborn v. Fireman’s Ins. Co. 16 Gray, 448. Putnam v. Home Ins. Co. 123 Mass. 324.
4. Such a temporary contract is valid when there is no payment or tender of payment of the premium, if the agent chooses to give the insured credit. To give credit in such cases is a common practice of insurance agents, and within the apparent scope of their authority. Angell v. Hartford Ins. Co. 59 N. Y. 171. Bouton v. American Ins. Co. 25 Conn. 542.
5. In their sixth request for instructions the defendants asked to have the jury told that the insurance was not in force at the time of the loss because the reasonable time given to Judd in which to see Baker had then expired. This request was founded on an assumption that the only contract which the jury could find on the evidence was a contract to continue the policies in force until Judd could see the plaintiff Charles H. Baker, and ascertain his wishes in regard to the insurance. But this was not the only construction that could be put upon the evidence. We think the jury believed that Judd and Weaver both understood at the time of their interview that the policies should be held in force temporarily for an indefinite period, until there should be some further communication between them in regard to the matter. If that was so, the policies would remain in force, in the absence of any notice by either party to the other, even if the time that was reasonably necessary to enable Judd to ascertain facts had elapsed. First Baptist Church v. Brooklyn Ins. Co. 19 N. Y. 305.
That the jury might give the contract a construction different from that assumed in the request is enough to justify the judge in his refusal to give the instruction, and we have no occasion to inquire whether the facts were so clear as to make the question what was a reasonable time to enable Judd to see Baker a question of law, or, if this question entered into the verdicts of the jury, whether it was rightly decided by them.
Exceptions overruled.