JUDGE BENNETT
delivered the opinion op the court.
W. S. Johnson & Co. were engaged in buying and - handling tobacco in their stemmery in the city of Owensboro, Ky. On the 26th day of August, 1880, this stemmery, together with a large quantity of tobacco, was destroyed by fire. They brought suit in the Daviess Circuit Court against the Lancashire, Phoenix, Springfield, Franklin, Insurance Company of North America, Lorillard, Liverpool and London and Globe, and Imperial and Northern Insurance Companies, claiming that they, at the time of said fire, held actual insurance, and a parol contract for insurance, in said companies, for sixteen thousand four hundred dollars on said tobacco; that said insurance was for the benefit of Sherley & Glover, who had advanced 'them the money with which they purchased said tobacco, except the insurance in the Franklin Insurance Company for one thousand dollars, which was for the [475]*475benefit of farmers who had tobacco in said stemmery, and the insurance in the Insurance Company of North America, which was for the benefit of the Deposit Bank of Owensboro.
The Franklin Insurance Company and the Insurance Company of North America ended the litigation, as far as they were concerned, by paying the sums claimed against them.
The lower court rendered judgment dismissing the petition of W. S. Johnson & Co. as against the Connecticut, the Lorillard, the Liverpool and London and Globe, and the Imperial and Northern Insurance Companies.
W. S. Johnson & Co. have appealed from said judgment. The lower court rendered judgment against the. Lancashire, the Phoenix, and the Springfield Insurance Companies for two thousand dollars each, with interest from December the 1st, 1880. From said judgment they have appealed. The appeal of W. S. Johnson & Co. v. The Connecticut Insurance Company, &c., will be disposed of first.
The appellants, W. S. Johnson & Co., prior to the 24th of August, 1880, had been in the habit of insuring their tobacco in the Connecticut, the Lorillard, the Liverpool and London and Globe, the Imperial and Northern, the Springfield, the Lancashire and Phoenix Insurance Companies. The insurance in each was, usually, two thousand dollars. Owing to the fact that said tobacco was to be shipped to market as fast as it could be prepared, the insurance was taken out for short periods of time, and renewed from time to time as occasion required. John Wandling was the local [476]*476agent at Owensboro for all these companies, and with whom appellants contracted for said insurance. Mr. Cottrell, one of the members of appellants’ firm, swears that, on the 24th of August, 1880, his attention was called to the fact by John Wandling, that the insurance on his tobacco was running low by reason of some of the policies having expired, and suggested that they be renewed. That he then informed Wandling that he desired as much as twelve thousand dollars insurance on his tobacco; and if the insurance remaining on it did not amount to that much, he desired the difference made up by renewals or new policies. That he did not know how much insurance there then was on the tobacco, or how much had expired, which he informed Wandling, and told him that whatever amount the actual insurance on the tobacco fell short of twelve thousand dollars, he desired renewals or new Xiolicies issued sufficient to make the whole amount of insurance as much as twelve thousand dollars. That Wandling also, professing not to know how much insurance there then was on the tobacco, looked at his book to ascertain the amount, and reported the policies on the tobacco in the Imperial and Northern, the Connecticut, the Lorillard, and the Liverpool and London and Globe Insurance Companies, for two thousand dollars each, as alive and in force. That he, Cottrell, knowing nothing to the contrary, and relying upon said statement as true, agreed with Wandling that he should give him additional insurance for four thousand dollars on the tobacco, both believing from the investigation made by Wandling that said sum would make twelve thousand dollars, in all, insurance on the to[477]*477bacco. That Wandling did, within a day or two thereafter, deliver to appellants policies in the Lancashire and Phoexix Insurance Companies for two thousand dollars each. Cottrell also swears that it was the agreement between appellants and Wandling that Wandling was to select the companies in which appellants insured for them. On the other hand, John Wandling swears that on the 24th of August, 1880, Cottrell came to his office and wished to know how much insurance he had on his tobacco; that he took him to his book, and read over to him the name of each company in which he had insurance, and the amount ■of each policy as it appeared in the book, giving the •expiration of each; that Cottrell was looking with him in the book; that it appeared, from said reading, that the policies in the four insurance companies above •named, for two thousand dollars each, were alive and in force; and the policy in the Lancashire for two thousand dollars had expired on the 21st of August, 1880; and the policy in the Phoenix expired that day, the 24th of August, 1880 ; that Cottrell then said renew the policies in the Lancashire and Phoenix for two thousand dollars each, which he, Wandling, agreed to do, and they were issued that day and delivered the next •day. Wandling also says that there was nothing said ■about twelve thousand dollars insurance, or enough insurance to make twelve thousand dollars. J. C. Wand-ling swears that he was present while said book was being examined. As to what occurred during that time, and immediately after, he corroborates John Wandling. It turned out on investigation, a day or two after the fire, that it was a mistake about the pol[478]*478icies in said four companies being alive and in force-on the 24th of August; that all of them had expired before then, which left the policy for two thousand dollars in the Springfield Insurance Company, which was alive and in force on the 24th of August, 1880, and the two renewed policies in the Lancashire and Phoenix, for two thousand dollars each, as all of the insurance, evidenced by written policies, that appellants had on said tobacco at the time of the fire.
The appellants’ contention amounts to this: That as they and Wandling believed that the policies in the said four companies, for two thousand dollars each, were alive and in force ; and as it was understood by Wand-ling that they desired as much as twelve thousand dollars insurance on said tobacco, to which he was agreed, which sum they, as well as Wandling, believed, by taking the additional policies in the Lancashire and Phoenix for two thousand dollars each, they would obtain ; and as Wandling made the mistake about there being policies alive and in force in said four companies for two thousand dollars each, whereby they only obtained, together with the policy already in force in the Springfield Insurance Company for two thousand dollars, policies for six thousand dollars on said tobacco, the said companies, appellees, are liable to them as on a verbal contract of insurance for the remaining six thousand dollars, or are estopped to deny their liability for that sum.
Presuming that Cottrell and John and J. C. Wand-ling were equally veracious in testifying as to their recollection of the transaction of the 24th of August, 1880, we are, nevertheless, constrained to believe, judg[479]*479ing by the rules of weighing evidence, that the transaction was substantially as the two latter recollect it.
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JUDGE BENNETT
delivered the opinion op the court.
W. S. Johnson & Co. were engaged in buying and - handling tobacco in their stemmery in the city of Owensboro, Ky. On the 26th day of August, 1880, this stemmery, together with a large quantity of tobacco, was destroyed by fire. They brought suit in the Daviess Circuit Court against the Lancashire, Phoenix, Springfield, Franklin, Insurance Company of North America, Lorillard, Liverpool and London and Globe, and Imperial and Northern Insurance Companies, claiming that they, at the time of said fire, held actual insurance, and a parol contract for insurance, in said companies, for sixteen thousand four hundred dollars on said tobacco; that said insurance was for the benefit of Sherley & Glover, who had advanced 'them the money with which they purchased said tobacco, except the insurance in the Franklin Insurance Company for one thousand dollars, which was for the [475]*475benefit of farmers who had tobacco in said stemmery, and the insurance in the Insurance Company of North America, which was for the benefit of the Deposit Bank of Owensboro.
The Franklin Insurance Company and the Insurance Company of North America ended the litigation, as far as they were concerned, by paying the sums claimed against them.
The lower court rendered judgment dismissing the petition of W. S. Johnson & Co. as against the Connecticut, the Lorillard, the Liverpool and London and Globe, and the Imperial and Northern Insurance Companies.
W. S. Johnson & Co. have appealed from said judgment. The lower court rendered judgment against the. Lancashire, the Phoenix, and the Springfield Insurance Companies for two thousand dollars each, with interest from December the 1st, 1880. From said judgment they have appealed. The appeal of W. S. Johnson & Co. v. The Connecticut Insurance Company, &c., will be disposed of first.
The appellants, W. S. Johnson & Co., prior to the 24th of August, 1880, had been in the habit of insuring their tobacco in the Connecticut, the Lorillard, the Liverpool and London and Globe, the Imperial and Northern, the Springfield, the Lancashire and Phoenix Insurance Companies. The insurance in each was, usually, two thousand dollars. Owing to the fact that said tobacco was to be shipped to market as fast as it could be prepared, the insurance was taken out for short periods of time, and renewed from time to time as occasion required. John Wandling was the local [476]*476agent at Owensboro for all these companies, and with whom appellants contracted for said insurance. Mr. Cottrell, one of the members of appellants’ firm, swears that, on the 24th of August, 1880, his attention was called to the fact by John Wandling, that the insurance on his tobacco was running low by reason of some of the policies having expired, and suggested that they be renewed. That he then informed Wandling that he desired as much as twelve thousand dollars insurance on his tobacco; and if the insurance remaining on it did not amount to that much, he desired the difference made up by renewals or new policies. That he did not know how much insurance there then was on the tobacco, or how much had expired, which he informed Wandling, and told him that whatever amount the actual insurance on the tobacco fell short of twelve thousand dollars, he desired renewals or new Xiolicies issued sufficient to make the whole amount of insurance as much as twelve thousand dollars. That Wandling also, professing not to know how much insurance there then was on the tobacco, looked at his book to ascertain the amount, and reported the policies on the tobacco in the Imperial and Northern, the Connecticut, the Lorillard, and the Liverpool and London and Globe Insurance Companies, for two thousand dollars each, as alive and in force. That he, Cottrell, knowing nothing to the contrary, and relying upon said statement as true, agreed with Wandling that he should give him additional insurance for four thousand dollars on the tobacco, both believing from the investigation made by Wandling that said sum would make twelve thousand dollars, in all, insurance on the to[477]*477bacco. That Wandling did, within a day or two thereafter, deliver to appellants policies in the Lancashire and Phoexix Insurance Companies for two thousand dollars each. Cottrell also swears that it was the agreement between appellants and Wandling that Wandling was to select the companies in which appellants insured for them. On the other hand, John Wandling swears that on the 24th of August, 1880, Cottrell came to his office and wished to know how much insurance he had on his tobacco; that he took him to his book, and read over to him the name of each company in which he had insurance, and the amount ■of each policy as it appeared in the book, giving the •expiration of each; that Cottrell was looking with him in the book; that it appeared, from said reading, that the policies in the four insurance companies above •named, for two thousand dollars each, were alive and in force; and the policy in the Lancashire for two thousand dollars had expired on the 21st of August, 1880; and the policy in the Phoenix expired that day, the 24th of August, 1880 ; that Cottrell then said renew the policies in the Lancashire and Phoenix for two thousand dollars each, which he, Wandling, agreed to do, and they were issued that day and delivered the next •day. Wandling also says that there was nothing said ■about twelve thousand dollars insurance, or enough insurance to make twelve thousand dollars. J. C. Wand-ling swears that he was present while said book was being examined. As to what occurred during that time, and immediately after, he corroborates John Wandling. It turned out on investigation, a day or two after the fire, that it was a mistake about the pol[478]*478icies in said four companies being alive and in force-on the 24th of August; that all of them had expired before then, which left the policy for two thousand dollars in the Springfield Insurance Company, which was alive and in force on the 24th of August, 1880, and the two renewed policies in the Lancashire and Phoenix, for two thousand dollars each, as all of the insurance, evidenced by written policies, that appellants had on said tobacco at the time of the fire.
The appellants’ contention amounts to this: That as they and Wandling believed that the policies in the said four companies, for two thousand dollars each, were alive and in force ; and as it was understood by Wand-ling that they desired as much as twelve thousand dollars insurance on said tobacco, to which he was agreed, which sum they, as well as Wandling, believed, by taking the additional policies in the Lancashire and Phoenix for two thousand dollars each, they would obtain ; and as Wandling made the mistake about there being policies alive and in force in said four companies for two thousand dollars each, whereby they only obtained, together with the policy already in force in the Springfield Insurance Company for two thousand dollars, policies for six thousand dollars on said tobacco, the said companies, appellees, are liable to them as on a verbal contract of insurance for the remaining six thousand dollars, or are estopped to deny their liability for that sum.
Presuming that Cottrell and John and J. C. Wand-ling were equally veracious in testifying as to their recollection of the transaction of the 24th of August, 1880, we are, nevertheless, constrained to believe, judg[479]*479ing by the rules of weighing evidence, that the transaction was substantially as the two latter recollect it. Be that, however, as it may, the evidence of Cottrell himself fails to establish a cause of action against the appellees. It is certain that the parties, on the 24th of August, 1880, made no contract of insurance — that is, an executed contract, evidenced by written policies in said companies — for twelve thousand dollars on said tobacco.
Also, we think that the parties made no contract to insure in said companies — that is, an executory contract — for twelve thousand dollars on said tobacco. The latter-kind of contract, usually existing in parol, must be established by the same class of proof required to establish any other contract. It must be shown that a complete contract was made; that an agreement to insure was, in fact, entered into, and that nothing essential to a complete agreement was léft open for future determination. The burden is on the party attempting to establish such a contract to establish it by a preponderance of evidence.
Here, on the 24th of August, there was no contract made to insure with appellees’ companies. The contract was with the Lancashire and Phoenix alone, for two thousand dollars each in their companies. The appellants and appellees, it is true, thought that appellants had a live and enforceable contract of insurance in appellees’ companies for eight thousand dollars, which turned out to be a mistake. Whether appellants and appellees’ agent were both responsible for the mistake, or the agent alone, the fact, nevertheless, exists that no contract was made to renew the policies in appellees’ companies.
[480]*480Upon what principle, then, can appellants hold appellees responsible? Is it upon the principle that, because appellants and appellees thought that appellants had a live contract of insurance in appellee’s companies, about which they were mistaken, and for that reason, probably, did not make a contract, therefore, the court should make a new contract for them ? This the court can not do. Had a contract been actually made to insure appellants in appellees’ companies for eight thousand dollars, which, by mistake, was not done in accordance with the agreement, then the court could correct the mistake and enforce the contract according to its terms; but the mistake consisted in not making a contract. We, therefore, have no power to make one at the instance of appellants over the objection of appellees.
As to the question of estoppel, the appellees, by their agent, Wandling, made to the appellants no promise to renew said policies, nor induced them to believe that they would renew the risk in their companies, nor was appellees’ agent alone responsible for the mistake in supposing that appellants’ policies were still alive in their company. Cottrell also examined the books with Wandling; besides, he had a good opportunity to know, from other sources, when said policies would expire. The mistake was mutual, and as much the fault of Cottrell as Wandling; therefore, the rule of estoppel does not apply.
As to the appeal by the Lancashire Insurance Co., etc., v. W. S. Johnson, etc.: The evidence as to the quantity and value of the tobacco consumed by the fire, while somewhat unsatisfactory .in some particu[481]*481lars, clearly preponderates in favor of the fact that said tobacco was worth largely more than the aggregate amount adjudged against the appellants by the lower court.
It appears from the record before us that the appellant, the Springfield Insurance Co., filed a separate answer to appellees’ petition, in which it was distinctly alleged that appellees, in their sworn preliminary statement of loss by the fire, made willfully untrue and fraudulent statements of the quantity and value of the tobacco destroyed by the fire, which, by the terms of the policy, rendered it void. Appellants failed to reply to this answer. Under the Civil Code, the answer must, therefore, be treated as true. The case, therefore, as to the appellee, the Springfield Insurance Co., must be reversed. But as the proof was taken and heard as to the quantity and value of the said tobacco, which tended to show that if appellants made any misstatements of fact in their preliminary oath and proof of loss, they were innocently made, the lower court, therefore, will, upon the return of the cause, allow the appellants a reasonable time in which to file a reply to said answer if they desire to do so, and then hear the case as to said appellee upon its hrerits. If they do not file said reply within a reasonable time, then the action as to said appellee must be dismissed.
The judgment of the lower court dismissing the petition of appellants, W. S. Johnson, & Co., v. the appellees, The Connecticut Insurance Co., etc., is affirmed. The judgment against the appellants, the Lancashire and Phcenix Insurance Companies, is [482]*482affirmed. The judgment against the Springfield Insurance Co. is reversed, and the cause remanded as to it for further proceedings consistent with this opinion.