By the Gowrt,
Kingman, J.The errors alleged in this case are, that the petition does not state facts sufficient to constitute a cause of actioiq and that the verdict is against the evidence and contrary to law.
On the part of the plaintiff in error it is claimed that the petition is defective in nine distinct particulars, but as the 5th is a mere corollary from the fourth and must stand or fall with it, it is omitted ; the 6th alleged defect is omitted as it is embraced in’the 8th.
The defects alleged are as follows:
“ 1st. It. does not allege that the defendants charter authorized the company to insure against loss or damage by fire.
“2d. It does not allege any agreement to insure against any loss or damage by fire.
“ 3d. It does not allege the title and date of the passage of the act of incorporation of the defendant, nor is the act of incorporation referred to at all.
*353“ 4th. That the tender of money and demand was not alleged to have been made on the 1st day of August.
“7th. The money tendered should have been brought into Court, and it must have been so pleaded.
“ 8th. The alleged agreement is incomplete, and is no agreement at all.
“9th. That plaintiff does not aver that he was the owner of anything but the saddlery from the. time of the commencement of the risk to that of the loss.”
The first and second objections present substantially the • same principle, and may bo considered together.
The averment that the defendants were authorized to effect insurance generally, covers all kinds of insurance, fire as well as others, while the averment of an agreement to insure generally, authorized the proof of an .insurance against fire. The want of sufficient certainty in the statement of facts, is not a cause of demurrer. The Code has provided another mode of correcting such a defect in pleadings. Section 128 provides that “when the.allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the .Court may require the pleading to be made definite and certain.”
The most that is or can be claimed of these averments of the petition, is that they do not allege definitely the kind of insurance authorized by the charter, and agreed between the parties. If the defendant felt that his defense in this case was likely to be embarrassed by reason of the kind of insurance not being mentioned, he might by motion have applied to the Court to compel an amendment.
The defect, if it be one,, is one of form only, and it is to be corrected under Section 128, while the. Court here is called upon to pass upon it as a matter of right of the defendant. It would be against the whole spirit of the Code, if a mere defective statement in a petition were allowed to pass unnoticed until after a trial and verdict was had, and then for the first time invoke the judgment of the Court as *354to the definiteness and certainty of the averment on the alleged ground that facts sufficient to constitute a cause of action are not stated in the petition. 12 A Y. B., 443.
The evidence not appearing it is to be presumed that the plaintiff proved that the defendant’s charter did authorize an insurance against fire, and an agreement to so insure the plaintiff’s goods. As a loss by fire was averred, such proof of power and an agreement therefor, was necessary to a recovery, and was undoubtedly made, we think properly under the pleadings. If the averment was so vague as to leave doubts in the mind of the defendant, his remedy was by motion, to make definite.
In considering the third objection, we have not thought it necessary in this case to determine whether in a suit against a foreign corporation the pleader should set out the act of incorporation or refer to it in his petition. That will be done where the question is properly presented. The only objection to the petition is that it does not state facts sufficient to constitute a cause of action. The question whether the defendants are a corporation is no part of the cause of action. They are either a corporation or have no existence. If the last, a judgment is of no avail. If sued by the wrong name they are at liberty to answer that they are not what they are represented to be. The petition avers that the defendants are a foreign insurance company created under and by virtue of the laws of Massachusetts. Defendants may have been entitled to require that the petition should have been made certain and definite in this particular, though of that we have great doubts, but they only traversed the facts alleged, and it must have been proven that they were a foreign corporation created under and by virtue of the laws of Massachusetts, to entitle plaintiff to recover. As the case is presented here the averment must be held sufficient. This has been the law in Massachusetts. See 5 Mass. R., 95, and in New York, See 2 Cow., 770; 5 Bosworth, 717.
*355The fourth and seventh errors alleged may be considered together. The contract, as proven, is not in the record, and we can only ascertain its terms by reference to the pleadings. By the petition it appears that the defendant in error agreed to pay the plaintiff in error $47.50 as premium within one month from the time of his application, and within that time plaintiff in error was to deliver the policy of insurance. By the terms of the contract the consideration of the stipulation on either side was the promises made by the othér. Either could perform his part of the contract at any time within one month. Duffey offered to pay the money which was his part of the agreement, and he was authorized to-do that at any time during the month. The insurance company were not bound to deliver the policy until the 1st day of August, the last day on which it was to be done. No demand was necessary. The company was as much bound to deliver the policy as Duffey was to pay the money. Neither was dependent on the other. This view of the case disposes of both the objections under consideration.
The eighth presents the question as to whether a verbal agreement to insure is binding.
The plaintiff in error did not present, nor have we been able to discover any law that makes it necessary that contracts of insurance should be in writing. The general usage has most undoubtedly been to reduce such contracts to writing, but this is for the safety and convenience of parties, not a requirement of law. There is nothing in the nature of the contract which requires written evidence of it. There is no statute directing it. It may be necessary now under the revenue laws, requiring a stamp, but certainly was not in 1860.
The Supremo Court of the United States in a recent case in which this question ¡jjose, directly decided that a parole agreement to make and deliver a policy of insurance need not be in writing. 19 Howard, 318.
*356The Court of Appeals of New York, have directly and positively affirmed the doctrine.upon reasoning impossible to shake. 19 N. Y. R., 307.
And such is the general tone of the authorities on this point.
The ninth defect pointed out surely does not show a want of cause of action, but might under certain states of proof limit the amount of recovery.
In the way it presents itself to this Court we can only look to see whether it presents facts sufficient to constitute a cause of action, not the amount of the recovery.
We have examined the various objections to the sufficiency of the petition, and are of the opinion that it states facts sufficient to constitute a cause of action, and the objection to .the introduction of testimony under it was properly overruled.-
During the - progress of the trial the defendant below without objection introduced.a paper signed by the plaintiff,- of which the following is a copy :
“ In consideration of the payment by the Hartford Insurance Company of $1,000, I hereby waive all claims I may have against the Western Massachusetts Company under any policies issued previous to July 9th, 1860.
Owen Dueeey.”
The plaintiff .introduced testimony tending to prove that the said agent of the defendant, who was, also the agent of the Hartford Eire Insurance Company, -refused to pay to the plaintiff the amount due on the policy of the Hartford Insurance Company, unless the plaintiff would sign the paper above set forth. It. was . admitted on the trial that the plaintiff had an insurance upon the stock of goods described in the petitition at the time of their .destruction, in the Hartford. Eire Insurance Company to the amount of $1,000, '
If.Duffey .had any claim upon the Elartford Insurance Company, then the payment of that- claim was his, of right, and the liquidation of that claim was clearly no proper *357legal consideration for any release of any claim he might liave on the present plaintiff in error, and tlie jury were the judges of the fact whether the proof was satisfactory of a want of consideration for the receipt.
It is further insisted that the verdict is against the evidence. Of this we can form no opinion, as the evidence is not all on the record.
Upon a review of the whole case, we are of the opinion that the decision of the Court below should be affirmed.
All the justices concurring.