[16]*16The opinion of the court was delivered by
Kingman, 0. J.:
On the 17th of April, 1867, the plaintiffs in error insured the dwelling of John Curran, in Leavenworth, for one year. On the 28th of June of that year John Curran died. On the 17th of September the building was destroyed by fire. The defendant in error having administered on the estate of Curran, her late husband, brought an action for $150, the amount insured by the plaintiff in error; and for this amount with interest she recovered judgment. To reverse this judgment the plaintiff in error brings the case to this court, alleging numerous errors, in pleading, in the admission and rejection of testimony, and in the instructions given and refused by the court. Such of these alleged errors as are deemed of importance will be noticed.
1' wRen°sítfflcient' It is claimed that as the petition did not state that the insurance company had taken the necessary steps to authorize it to do business in this state as required by statute, that it was therefore defective, and no testimony should have been admitted under it. Such an averment was not only unnecessary, but in such an action as this the insurance company could not set up such a state of facts as a defense. A foreign insurance company doing business in this state, when sought to be made liable for its contracts made here, is estopped from saying that they are doing business contrary to law; and what the company could not set up as a defense, as to that matter, the plaintiff need not aver.
8' aammiSre-11 toimaysue. As a further objection to the petition it is urged that the administratrix could not recover without an averment that the house was personal property. The policy stipulated to make good to “ the assured, his executors, administrators, and assigns, all such immediate loss or damage,” etc.; and the administratrix is the proper party to sue in such a case: (Angelí on Ins., § 389; 2 Phil, on Ins., 1796.) There was testimony tending to show that John Curran owned the property insured, which he had built on leased property. It is true that Mrs. Curran speaks of it as though she had control of it, that she paid the insurance premium, [17]*17that she occupied it with her family. Yet this is to be taken in connection with the other testimony; and we think the jury very properly found it to have been the property of John Cur-ran when insured.
' jossfwhat is s cion The policy sued on stipulated that the assured should forthwith give notice of loss to the company through the general agent in New York. There is no direct, positive proof of such notice, and therefore it is claimed . n0 recovery • tut the testimony showed that the local agent in Leavenworth gave written notice within forty-eight hours of the loss, to the general agent in New York, and that Mrs. Curran was at the local agent’s office immediately after the fire; and one cannot read the case without a full conviction that she was in earnest in her efforts to get the insurance money. The jury were instructed on this point, that the plaintiff could not recover unless she gave the notice as soon as she could with reasonable effort do so; but that the notice was sufficient if the local agent of the company acting upon information of the loss given by plaintiff immediately after the fire, communicated intelligence of the fire and loss of property to the defendant through its general agent in New York. We think this was a fair presentation of the law as applicable to the testimony in this case. The jury must have found that the notice was given by the local agent, upon information furnished by the plaintiff; and this is a reasonable inference from the testimony, and a substantial compliance with the requirements of the policy.
4' u>BB°wheu admirfstai6 t01‘ It is insisted that the preliminary proofs of loss required by the policy, and given in evidence, are not such as the policy requires, and the ease seems to have been tried on this hypothesis. These proofs are very full and miñute, and but one objection is made to them in this court, and that alone will be noticed. The objection is at most very technical, and not to be favored; but even that will be found upon inspection to be illusory. In addition to proof of loss, the policy required that “ the insured shall also produce a certificate under the hand and seal of a magistrate, [18]*18notary public, or commissioner of deeds, (nearest to tbe place of fire, not concerned in the loss as a creditor, or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate, notary public, or commissioner of deeds shall certify.” The certificate states that the magistrate'who makes it, resides most contiguous to the property destroyed, that he is not concerned in the loss or claim as a creditor or otherwise, or related to the insured or sufferer, and then states “that I have examined the circumstances attending the fire or damage as alleged, and that I am well acquainted with the character and circumstances of the insured, and do verily believe that the estate of said John Curran, deceased, has by misfortune, and without fraud or evil practice upon the part of any of the heirs, or any one interested in said estate, sustained loss and damage to the amount of $760.40.” A comparison of the requirement of the policy and the certificate made, shows a substantial, and as far as the situation of the parties permitted, almost a literal compliance with the stipulation of the policy; and when the object of the stipulation is considered, the objection will be found to be witlnrat color of reason.
5. written ments’ construction of. Another point of more difficulty is this: After the death of her husband and before the loss by fire the plaintiff made a contract to sell the property to one Wilson. This contract is in writing. It is so obscure and uncertaiu that it is almost impossible to give it a definite construction. The court below avoided the difficulty by telling .the jury that “the meaning and import of the instrument is not’definite and certain, and therefore the question is submitted to the jury to determine the intention of the parties.” It was undoubtedly the duty of the court to give a construction to the writing, and the failure to do so was error; but it is no ground for reversing the judgment, because it is clear that the jury must have put upon it a correct construction. [19]*19such as the court should nave given it, or they could not have found for the plaintiff: Richer v. Cutter, 8 Gray 248. The instrument is not of itself a conveyance of the property, or a promise to convey. The most that can be made out of it is that it is an informal memorandum of terms, which the parties had agreed to about the property, which was to be carried into effect in October afterwards.
6' wheíparty SSm facts!16 In her examination by the insurance company’s attorney, the plaintiff, under oath, stated that she had sold the property to Wilson. This statement was made soon after the loss, and it was this statement, undoubtedly, mainly induced the company to resist the payment. The. counsel for plaintiff in error insists that this statement should operate as an estoppel on the administratrix, so as to prevent her denying the sale of the property.
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[16]*16The opinion of the court was delivered by
Kingman, 0. J.:
On the 17th of April, 1867, the plaintiffs in error insured the dwelling of John Curran, in Leavenworth, for one year. On the 28th of June of that year John Curran died. On the 17th of September the building was destroyed by fire. The defendant in error having administered on the estate of Curran, her late husband, brought an action for $150, the amount insured by the plaintiff in error; and for this amount with interest she recovered judgment. To reverse this judgment the plaintiff in error brings the case to this court, alleging numerous errors, in pleading, in the admission and rejection of testimony, and in the instructions given and refused by the court. Such of these alleged errors as are deemed of importance will be noticed.
1' wRen°sítfflcient' It is claimed that as the petition did not state that the insurance company had taken the necessary steps to authorize it to do business in this state as required by statute, that it was therefore defective, and no testimony should have been admitted under it. Such an averment was not only unnecessary, but in such an action as this the insurance company could not set up such a state of facts as a defense. A foreign insurance company doing business in this state, when sought to be made liable for its contracts made here, is estopped from saying that they are doing business contrary to law; and what the company could not set up as a defense, as to that matter, the plaintiff need not aver.
8' aammiSre-11 toimaysue. As a further objection to the petition it is urged that the administratrix could not recover without an averment that the house was personal property. The policy stipulated to make good to “ the assured, his executors, administrators, and assigns, all such immediate loss or damage,” etc.; and the administratrix is the proper party to sue in such a case: (Angelí on Ins., § 389; 2 Phil, on Ins., 1796.) There was testimony tending to show that John Curran owned the property insured, which he had built on leased property. It is true that Mrs. Curran speaks of it as though she had control of it, that she paid the insurance premium, [17]*17that she occupied it with her family. Yet this is to be taken in connection with the other testimony; and we think the jury very properly found it to have been the property of John Cur-ran when insured.
' jossfwhat is s cion The policy sued on stipulated that the assured should forthwith give notice of loss to the company through the general agent in New York. There is no direct, positive proof of such notice, and therefore it is claimed . n0 recovery • tut the testimony showed that the local agent in Leavenworth gave written notice within forty-eight hours of the loss, to the general agent in New York, and that Mrs. Curran was at the local agent’s office immediately after the fire; and one cannot read the case without a full conviction that she was in earnest in her efforts to get the insurance money. The jury were instructed on this point, that the plaintiff could not recover unless she gave the notice as soon as she could with reasonable effort do so; but that the notice was sufficient if the local agent of the company acting upon information of the loss given by plaintiff immediately after the fire, communicated intelligence of the fire and loss of property to the defendant through its general agent in New York. We think this was a fair presentation of the law as applicable to the testimony in this case. The jury must have found that the notice was given by the local agent, upon information furnished by the plaintiff; and this is a reasonable inference from the testimony, and a substantial compliance with the requirements of the policy.
4' u>BB°wheu admirfstai6 t01‘ It is insisted that the preliminary proofs of loss required by the policy, and given in evidence, are not such as the policy requires, and the ease seems to have been tried on this hypothesis. These proofs are very full and miñute, and but one objection is made to them in this court, and that alone will be noticed. The objection is at most very technical, and not to be favored; but even that will be found upon inspection to be illusory. In addition to proof of loss, the policy required that “ the insured shall also produce a certificate under the hand and seal of a magistrate, [18]*18notary public, or commissioner of deeds, (nearest to tbe place of fire, not concerned in the loss as a creditor, or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate, notary public, or commissioner of deeds shall certify.” The certificate states that the magistrate'who makes it, resides most contiguous to the property destroyed, that he is not concerned in the loss or claim as a creditor or otherwise, or related to the insured or sufferer, and then states “that I have examined the circumstances attending the fire or damage as alleged, and that I am well acquainted with the character and circumstances of the insured, and do verily believe that the estate of said John Curran, deceased, has by misfortune, and without fraud or evil practice upon the part of any of the heirs, or any one interested in said estate, sustained loss and damage to the amount of $760.40.” A comparison of the requirement of the policy and the certificate made, shows a substantial, and as far as the situation of the parties permitted, almost a literal compliance with the stipulation of the policy; and when the object of the stipulation is considered, the objection will be found to be witlnrat color of reason.
5. written ments’ construction of. Another point of more difficulty is this: After the death of her husband and before the loss by fire the plaintiff made a contract to sell the property to one Wilson. This contract is in writing. It is so obscure and uncertaiu that it is almost impossible to give it a definite construction. The court below avoided the difficulty by telling .the jury that “the meaning and import of the instrument is not’definite and certain, and therefore the question is submitted to the jury to determine the intention of the parties.” It was undoubtedly the duty of the court to give a construction to the writing, and the failure to do so was error; but it is no ground for reversing the judgment, because it is clear that the jury must have put upon it a correct construction. [19]*19such as the court should nave given it, or they could not have found for the plaintiff: Richer v. Cutter, 8 Gray 248. The instrument is not of itself a conveyance of the property, or a promise to convey. The most that can be made out of it is that it is an informal memorandum of terms, which the parties had agreed to about the property, which was to be carried into effect in October afterwards.
6' wheíparty SSm facts!16 In her examination by the insurance company’s attorney, the plaintiff, under oath, stated that she had sold the property to Wilson. This statement was made soon after the loss, and it was this statement, undoubtedly, mainly induced the company to resist the payment. The. counsel for plaintiff in error insists that this statement should operate as an estoppel on the administratrix, so as to prevent her denying the sale of the property. It has not one of the elements of an estoppel. It went to the jury, and had its proper influence in forming their decision, and this is all that can be justly claimed for it.
In the course of the trial, plaintiff announced that he had closed his testimony, but before anything further had taken place, asked and obtained leave to introduce other testimony. This was correct practice.
From what has been said it is apparent that the court properly refused the instructions asked by the plaintiff in error, and did not err to the prejudice of the same party in the instructions given. The judgment must be affirmed.
Yaientine, J., concurring.
Brewer, J., was not on the bench when this case was submitted.