The opinion of the Court was drawn up by
Whitman C. J.
— This cause is brought before us under the belief, entertained by the parties, that it comes within the act of 1845, ch. 172, which provides^ that “whenever it shall happen in the trial of any cause in the District Court, that any one or more questions of law arise, it shall be lawful for the Judge, with the consent of the parties* to draw up a report of the case, presenting the • legal points for decision, and containing such stipulations as the parties may make, relative to the disposition of the case by nonsuit, default or otherwise and that the same shall be transferred to this Court for decision.
It will be important, in the first place, to ascertain the true intent and meaning of the Legislature, as contained in this enactment. Was it intended, that a cause in which some incidental and incipient question might arise, should, thereupon, *27be transferred to this Court for its decision; and, upon its decision, that this Court should, thereafter, continue its jurisdiction over the same to its final termination ? Or was it intended, that, in a trial in the District Court, the cause should proceed to a full dev elopement, and then, if any questions of law were found to have arisen therein, upon which the decision of the cause one way or the other must ultimately depend, that the same should be transferred to this Court for a final decision ? If the former was the intent of the enactment, every cause in the District Court, upon a slight, and even frivolous pretence, however unimportant the amount at stake might be, could be transferred from that Court to this, whereby the manifest intent of the Legislature, in the Rev. Stat. ch. 96 & 97, defining the boundaries between the jurisdiction of the two Courts, would be virtually frustrated. If the latter, then the distinction, in spirit and meaning, would still be maintained. The act itself speaks of “ the trial of any cause.” There was then to be a trial in the District Court, in which the questions of law might arise. A report of the case is to be drawn up by the Judge. A report as to one incident, occurring in the first stage of a cause, could not well be denominated a report of a cause, which had been tried. The parties, moreover, are to make stipulations as to the disposition of the cause. What is meant by the disposition of the cause ? Must it be other than a final determination of it ? This disposition is to be “ by non-suit, default or otherwise.” A nonsuit or default would be a final disposition. And what is meant by “ otherwise” ? Generally, when certain items are specified, and others are said to be included, without particularizing them, they must be of the same kind. Upon this principle “otherwise,” in this instance, must necessarily have reference to a disposition of the cause equivalent to what would be effected by a nonsuit or default. Besides, in <§> 2 of the act, it is provided, that this Court shall “render judgment therein, in the same manner, and with the same effect, as on a report made by consent of parties, by a Judge of the Supreme Judicial Court.” This Court is to render jhidgmera# therein. To render judgment would seem to *28imply a final disposition. Furthermore, the case is to be reported ? Does not this mean a full report, so that the case can be finally disposed of? If all the facts were reported, with the points of law supposed to arise therefrom, there could be no reason for any agreement for a further trial. These considerations alone might be sufficient to authorize us to dismiss the case from our further consideration, as we are presented with but a part of the case for determination.
But there are other weighty objections to our taking cognizance of it. The writ originally contained but one count; and that was on an alleged agreement, on the part of the defendant, with the plaintiffs, to become insurer by a policy to be effected on the schooner Oxford. Before issue was joined a motion was made for leave to amend by declaring upon a policy as actually made 'for the purpose. This motion was neither granted nor refused; and yet the cause was allowed to proceed to trial, seemingly as if it had been made. And the case states, that it was agreed between the parties, if this Court should be of opinion, that the amendment was admissible, it should be considered as having been made. By the statute it would seem that it was in contemplation, that a trial should be had in the District Court, and that questions of law might arise therein, on which a final decision would depend. Can a cause, when such an amendment was proposed, and undecided upon, be considered as proceeding to trial; especially if the maintenance of the cause depended upon its introduction ? It is difficult to perceive why the amendment should not have been admitted. Barker & al. v. Burgess & al. 3 Metc. 273. And if admitted, it might have constituted the only basis upon which the action could have been maintained; and very clearly the only foundation for the question, which it is said, in the latter part of the report, the parties had agreed, alone, to submit to our decision, viz: “ whether a contract of insurance was effected.”
But the graver objection to our taking cognizance of the cause is, that the question, as to the efficacy of the contract, is one not of law purely, but a mixed question of law and fact. *29It is agreed, and may be regarded as reported by the Judge of the District Court, that a policy was actually made, and duly signed by the agent of the defendant, John W. Smith, as had been contemplated between the parties, and entered, by said agent, upon what was called, his record; and that the defendant and others had, by a public advertisement made by the same agent, held themselves out as having formed a voluntary association, by the name of “ The Portland Marine Insurance Company,” the said Smith being president and secretary of the same, with power to affix the signatures of each of the associates to policies. But the policy, so made and recorded, was never actually handed over to the plaintiffs. Ordinarily an instrument in writing to be effectual, is expected to be delivered to the obligee therein. But in reference to parol agreements, and policies are not often, if ever, under seal, every thing must depend upon the intention and understanding of the parlies. They may consent, that a writing which is intended to contain the evidence of an agreement between them, though it may be left in the hands of the one party, or the other, without any formal delivery of it by either to the other, shall be evidence of their agreement. What the intention of the parties may be, as to a writing prepared between them, in reference to its efficacy, is a question referable to a jury as matter of fact, and not altogether of law, referable to the Court. To ascertain such understanding and intention, resort may be had to the nature of the contract, the subject matter of it, the habits and modes usual in such cases, and to the language and declarations of the parties. The defendant, in this instance, with others, held themselves out as general insurers ; and as keeping an office for the purpose, by their agent, Smith, allowing hirn to style himself president of their board of directors. A jury might infer that they were fully conversant with that business, and that they had adopted the usages incident to it. If it was customary for the insured to be content, that their policies should, when made out, remain in the office of the underwriter, and still be obligatory; and it should appear that such had been the case in the office of the *30defendant; and, at the same time, that the agent or insurance broker had all along declared, that the risk had been taken, and was upon the company; and if it should be believed, that, in case there had been no loss, the premium would have been executed and recovered, a jury might conclude, that it was intended, that the policy, so made out should constitute a binding contract. The argument, that Loring, one of the plaintiffs, had not authority to contract for the rest, considering that he would be answerable personally for the premium, if he had not such authority, and considering that this objection was not made during the progress of the contract, nor until a loss had occurred'; and especially as the plaintiffs ratified the contract, and never repudiated it, bringing themselves within the decision in Finney & al. v. F. Ins. Co. 5 Metc. 192, might not affect the claim of the plaintiffs. The not giving of a note for the premium might be made to appear unimportant, as constituting only a reiteration of the promise to pay it, contained or fully implied in the proposition for insurance, signed by Loring in behalf of the plaintiffs.
On the whole, therefore, we cannot regard the question, intended to be submitted to us, as one of law unmixed with matter proper for the consideration of the jury; and the cause must be dismissed from our jurisdiction.