Field, J.
The declaration considered apart from the policy is unintelligible. It does not allege that Alanson K. Josselyn [159]*159has died, or that anything has happened whereby, by the terms of the policy, any sum of money has become payable. But the defendant did not demur to it, or move the court before the trial that a copy of the policy be filed, or that the particular breach in the contract on which the plaintiff relied be specified. There cannot be said to be a variance between the policy put in evidence and the declaration, because the declaration refers to the policy, and does not set out any contract inconsistent with it. The objection really is, that the declaration does not definitely describe the policy or the legal effect of it, or allege any breach of any obligation of the defendant under it. As the defendant answered this declaration without demurring to it, if the presiding justice chose to permit the plaintiff to proceed with the trial after producing the policy, an exception does not lie to the admission of the policy in evidence, on the ground that the declaration, as construed in connection with the policy, is ambiguous, and does not distinguish between an indebtedness on the promise to pay Josselyn’s wife and children the sum insured if Josselyn died before November 8,1877, and an indebtedness on the promise to pay Josselyn, if he survived until that day. Josselyn did survive and was alive at the trial. It was in the power of the court, undoubtedly, to compel the plaintiff to set out distinctly his cause of action, even if the defendant had not demurred to the declaration, but the defendant did not invoke the exercise of this power by the court.
The evidence showed that only a part of the premiums had been paid, and that by the policy only a part of the sum insured was payable, and tended to prove a case under special provisions of the policy to which there was no reference in the declaration.
The Pub. Sts. e. 167, § 2, el. 9, requiring written instruments to be declared on by “ setting out a copy or such part as is relied on, or the legal effect thereof,” except policies of insurance. Of the two forms of declarations on policies of insurance annexed to this chapter in the statutes, one assumes that a copy of the policy is annexed to the declaration, and the other that it is not.
The reason for excepting policies of insurance in the statute was, probably, that they are often of great length, and contain a multitude of provisions and conditions that may have no bearing on the particular ease, and it was thought to be sufficient if [160]*160the plaintiff stated the substantive facts on which he relied, and alleged that the defendant was thereby bound, by the terms of the policy, to pay him the sum sued for. The statute in this respect followed the old rules of court. 24 Pick. 406.
It was not necessary that the plaintiff should allege in his declaration the facts that defeated a part of his claim under special provisions of the policy.
The exceptions to the admission of the record of the insurance commissioner, and of the letter of December 14, 1874, received from the assistant secretary of the company, were waived at the argument; and the exception to the admission of the letter from the assistant secretary of November 13, 1877, has not been pressed, and is untenable.
By the policy, if Alanson K. Josselyn “ shall survive until the eighth day of November, 1877, then the said amount insured shall be paid to him, deducting therefrom the amount of all unpaid notes given for premiums or loans by them on this policy, and all deferred premiums, if any, then existing.” This interest in the policy Alanson IL Josselyn could assign, and did assign to the plaintiff, as collateral security for the payment of two promissory notes given by him. That his wife joined with him in the assignment does not detract from the effect of his assignment ; and it is not necessary to consider what would have been the effect of her assignment if her husband had died before November 8, 1877.
But the plaintiff cannot maintain this action in his own name, unless the defendant has expressly or impliedly promised to pay him as assignee. Grant v. Wood, 12 Gray, 220. Burrows v. Glover, 106 Mass. 324. Tate v. Citizens’ Ins. Co. 13 Gray, 79. The policy provides “that, if assigned, written notice shall be given to said company.” Such notice was given, and the company, in writing, on July 6, 1874, “ hereby acknowledge notice of the foregoing assignment subject to the conditions and restrictions of said policy.” This is not a promise to pay the plaintiff as assignee. In July, 1874, it could not be known whether Alanson K. Josselyn would live until November 8,1877, and if he died before that daj% the sum insured was payable, on his death, to his wife and children. If he left children, the wife alone could not assign the whole sum insured. The company [161]*161might well decline to do more than acknowledge notice of the assignment. A promise to pay the sum insured to the assignee might create obligations inconsistent with the original contract, and is not to be inferred from the mere acknowledgment of notice of the assignment.
If A. K. Josselyn lived until November 8, 1877, he was the proper person to sue for the sum insured. The policy was not under seal. Flynn v. North American Ins. Co. 115 Mass. 449. Brigham v. Home Ins. Co. 131 Mass. 319. The insurance was on his life; the promise was to pay him; and in fact he was not a stranger to the consideration, for although the policy recites a payment of an annual premium by his wife and children, the exceptions state that the premium for the six years in money and notes was actually paid by him. If the declaration alleges any promise by the defendant to pay the plaintiff the sum insured, it must be inferred from the allegations made of the assignment, and of the written acknowledgment of notice of it by the company. We think this is not in effect an allegation of a promise to pay the plaintiff, as we have held that the written acknowledgment did not amount to such a promise.
There was evidence of the assignment of the policy to the plaintiff as collateral security for the payment of two notes given by A. K. Josselyn, on which $2700 remained due, at the time of the trial. This is a good, existing assignment as between Josselyn and the plaintiff, and would enable the plaintiff to maintain a suit in Josselyn’s name.
The next objection is, that there is no evidence that more than three complete annual premiums have been paid. The policy provides that the company “ assure the life of Alanson K. Josselyn .... in the amount of five thousand dollars or after the due payment of premium for two or more years, if default shall be made in the payment of any subsequent premium, for as many tenth parts of the original sum insured as there shall have been complete annual premiums paid.” The policy contains in the margin the following words and figures: “ Annual premium. $562.50 ; Payable $281 note, $281.50 cash, each 12 months from Nov. 8, 1867.” The letter of the assistant secretary, of December 14,1874, acknowledges that premiums have been paid up to November 8, 1873. The exceptions state that, “ By the [162]*162terms of the policy, one half of the premium was to be paid in cash and a note given each year for the other half.
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Field, J.
The declaration considered apart from the policy is unintelligible. It does not allege that Alanson K. Josselyn [159]*159has died, or that anything has happened whereby, by the terms of the policy, any sum of money has become payable. But the defendant did not demur to it, or move the court before the trial that a copy of the policy be filed, or that the particular breach in the contract on which the plaintiff relied be specified. There cannot be said to be a variance between the policy put in evidence and the declaration, because the declaration refers to the policy, and does not set out any contract inconsistent with it. The objection really is, that the declaration does not definitely describe the policy or the legal effect of it, or allege any breach of any obligation of the defendant under it. As the defendant answered this declaration without demurring to it, if the presiding justice chose to permit the plaintiff to proceed with the trial after producing the policy, an exception does not lie to the admission of the policy in evidence, on the ground that the declaration, as construed in connection with the policy, is ambiguous, and does not distinguish between an indebtedness on the promise to pay Josselyn’s wife and children the sum insured if Josselyn died before November 8,1877, and an indebtedness on the promise to pay Josselyn, if he survived until that day. Josselyn did survive and was alive at the trial. It was in the power of the court, undoubtedly, to compel the plaintiff to set out distinctly his cause of action, even if the defendant had not demurred to the declaration, but the defendant did not invoke the exercise of this power by the court.
The evidence showed that only a part of the premiums had been paid, and that by the policy only a part of the sum insured was payable, and tended to prove a case under special provisions of the policy to which there was no reference in the declaration.
The Pub. Sts. e. 167, § 2, el. 9, requiring written instruments to be declared on by “ setting out a copy or such part as is relied on, or the legal effect thereof,” except policies of insurance. Of the two forms of declarations on policies of insurance annexed to this chapter in the statutes, one assumes that a copy of the policy is annexed to the declaration, and the other that it is not.
The reason for excepting policies of insurance in the statute was, probably, that they are often of great length, and contain a multitude of provisions and conditions that may have no bearing on the particular ease, and it was thought to be sufficient if [160]*160the plaintiff stated the substantive facts on which he relied, and alleged that the defendant was thereby bound, by the terms of the policy, to pay him the sum sued for. The statute in this respect followed the old rules of court. 24 Pick. 406.
It was not necessary that the plaintiff should allege in his declaration the facts that defeated a part of his claim under special provisions of the policy.
The exceptions to the admission of the record of the insurance commissioner, and of the letter of December 14, 1874, received from the assistant secretary of the company, were waived at the argument; and the exception to the admission of the letter from the assistant secretary of November 13, 1877, has not been pressed, and is untenable.
By the policy, if Alanson K. Josselyn “ shall survive until the eighth day of November, 1877, then the said amount insured shall be paid to him, deducting therefrom the amount of all unpaid notes given for premiums or loans by them on this policy, and all deferred premiums, if any, then existing.” This interest in the policy Alanson IL Josselyn could assign, and did assign to the plaintiff, as collateral security for the payment of two promissory notes given by him. That his wife joined with him in the assignment does not detract from the effect of his assignment ; and it is not necessary to consider what would have been the effect of her assignment if her husband had died before November 8, 1877.
But the plaintiff cannot maintain this action in his own name, unless the defendant has expressly or impliedly promised to pay him as assignee. Grant v. Wood, 12 Gray, 220. Burrows v. Glover, 106 Mass. 324. Tate v. Citizens’ Ins. Co. 13 Gray, 79. The policy provides “that, if assigned, written notice shall be given to said company.” Such notice was given, and the company, in writing, on July 6, 1874, “ hereby acknowledge notice of the foregoing assignment subject to the conditions and restrictions of said policy.” This is not a promise to pay the plaintiff as assignee. In July, 1874, it could not be known whether Alanson K. Josselyn would live until November 8,1877, and if he died before that daj% the sum insured was payable, on his death, to his wife and children. If he left children, the wife alone could not assign the whole sum insured. The company [161]*161might well decline to do more than acknowledge notice of the assignment. A promise to pay the sum insured to the assignee might create obligations inconsistent with the original contract, and is not to be inferred from the mere acknowledgment of notice of the assignment.
If A. K. Josselyn lived until November 8, 1877, he was the proper person to sue for the sum insured. The policy was not under seal. Flynn v. North American Ins. Co. 115 Mass. 449. Brigham v. Home Ins. Co. 131 Mass. 319. The insurance was on his life; the promise was to pay him; and in fact he was not a stranger to the consideration, for although the policy recites a payment of an annual premium by his wife and children, the exceptions state that the premium for the six years in money and notes was actually paid by him. If the declaration alleges any promise by the defendant to pay the plaintiff the sum insured, it must be inferred from the allegations made of the assignment, and of the written acknowledgment of notice of it by the company. We think this is not in effect an allegation of a promise to pay the plaintiff, as we have held that the written acknowledgment did not amount to such a promise.
There was evidence of the assignment of the policy to the plaintiff as collateral security for the payment of two notes given by A. K. Josselyn, on which $2700 remained due, at the time of the trial. This is a good, existing assignment as between Josselyn and the plaintiff, and would enable the plaintiff to maintain a suit in Josselyn’s name.
The next objection is, that there is no evidence that more than three complete annual premiums have been paid. The policy provides that the company “ assure the life of Alanson K. Josselyn .... in the amount of five thousand dollars or after the due payment of premium for two or more years, if default shall be made in the payment of any subsequent premium, for as many tenth parts of the original sum insured as there shall have been complete annual premiums paid.” The policy contains in the margin the following words and figures: “ Annual premium. $562.50 ; Payable $281 note, $281.50 cash, each 12 months from Nov. 8, 1867.” The letter of the assistant secretary, of December 14,1874, acknowledges that premiums have been paid up to November 8, 1873. The exceptions state that, “ By the [162]*162terms of the policy, one half of the premium was to be paid in cash and a note given each year for the other half. Payments were made, and notes given by Josselyn, for six years, the last one being in 1872; and the company still holds notes, copies of which are attached to the defendant’s answer, which notes, principal and interest, are due and unpaid, and no further premium has been paid by any one.”
The notes held by the company are payable in twelve months after date, with interest, and are respectively for $535, $141, and $135, and dated November 8, 1870, November 8, 1871, and November 8,1872. The policy is dated November 8, 1867. It is plain that the cash paid was more than the whole amount of premiums for two years, even if the construction to be given to the words “ after the due payment of premium for two or more years,” found in the clause we have cited, requires that the payment be made in money. We think, however, that this is not the true construction, but that these words, as well as the words <6 complete annual premiums paid,” found in the same clause, mean, that the payment of premiums shall be made according to the terms of the policy; that the words in the margin which have been cited are a part of the policy, and that by the contract the annual premium is to be paid $281 by note, and $281.50 in cash, and that, on the evidence, it was competent for the court to find that six complete annual premiums had been paid, and that six tenths of the sum insured were payable, less the outstanding notes. The company is protected by the provision in the policy, that from the amount insured there shall be deducted “ the amount of all unpaid notes given for premium or loans by them on the policy, and on deferred premiums, if any, then existing.”
The evidence offered by the defendant for the purpose of reforming the policy by substituting 1879 for 1877, as the time when, if Josselyn survived, the sum insured became payable to him, was rightly rejected. Written contracts cannot be reformed in actions at law by oral evidence of clerical mistakes.
The defendant contends that the letter written by Josselyn on August 28,1879, notifying the company not to pay the policy to the plaintiff, was improperly rejected, because, it is said, it was competent upon the question of interest. It is not necessary to [163]*163decide this. By the policy, as we construe it, if A. K. Josselyn survived until November 8, 1877, the amount insured became payable to him immediately. If the plaintiff, as Josselyn’s assignee, contended that the sum should be paid to him, he must exhibit some evidence of his right under the assignment to receive it; and it is contended that evidence that Josselyn denied his right to receive it was evidence that the company in neglecting to pay was not unjustly withholding the money due, because there were conflicting claims. Interest is not payable by the terms of the contract. As the sum insured was payable to Josselyn only on the contingency that he survived until November 8, 1877, and even then it is not made expressly payable on that day, and as the sum payable was not a sum certain, but depended upon the payment of the annual premiums, and was subject to deductions, we think that interest is not recoverable, as matter of law, if the sum is not paid on that day. It is only recoverable as damages for unlawfully withholding the money.
It was therefore in this case necessary to allege and prove a demand, or other facts from which an obligation to pay interest arises, in order to recover interest before the date of the writ. The company was entitled to proof that Josselyn survived until November 8,1877, before it can be said to have unjustly withheld the money from him or his assignee. The declaration is as unsatisfactory in its allegations concerning interest as in every other respect. It alleges that the defendant agreed to pay or cause to be paid the said sum insured “ninety days after due notice and satisfactory evidence of the just claim of the assured, or proof of interest if assigned,” &c., “ has been received and approved by the company,” and that the defendant owes the plaintiff “ the said sum of five thousand dollars and interest thereon from November 8, 1877, ninety days after due notice having elapsed, and satisfactory evidence of the just claim of the assured, and of the assignment to plaintiff, having been made.” The provision in the policy for ninety days’ due notice and satisfactory evidence of the death of Josselyn, and of the just claim of the assured, have no application if he survived until November 8, 1877, and the sum insured became payable to him. By the assured in the policy are meant Josselyn’s wife and children.
[164]*164Evidence appears that, in October, 1879, the plaintiff demanded payment, and that the defendant objected to paying, on the ground, among others, that it then was under an injunction from some court restraining it from paying any loss. It is unnecessary to attempt to state all the principles which govern the liabilities of a stakeholder to pay interest as damages for not paying money which two or more persons claim adversely, or while enjoined from paying it by a court. The presiding justice has allowed interest from November 8, 1877. Whether he allowed this on the ground that, as matter of law, the sum payable drew interest from that time as a sum absolutely payable on a fixed day, or from finding that there was a demand on that day, we do not know. He could not, however, as we have held, do this unless there was a demand on that day, and no evidence of this is recited. The defendant requested a ruling that “ interest cannot be recovered under this declaration,” which was refused. We think that this request must mean that interest could not be recovered under the declaration before the date of the writ. This request should have been given unless the declaration either alleges that a demand was made by Josselyn or the plaintiff for the payment of the sum insured at some time after it became payable, and before suit brought, or alleges other facts from which an obligation to pay interest arises. Ordway v. Colcord, 14 Allen, 59. We think that the declaration does not, with reasonable certainty, allege any such demand, or any such facts. This exception is therefore sustained.
But the plaintiff may apply to the Superior Court for leave to remit the interest from November 8, 1877, to the date of the writ, and to amend his writ by substituting for himself as plaintiff the name of Alanson K. Josselyn, as nominal plaintiff; and, if this is allowed by that court, with or without terms, as that court may order, judgment may then be entered on the finding for the amount remaining after the remission; otherwise, the entry must be Exceptions sustained.