The opinion
On motion for rehearing, Wagner, Judge, delivered the following opinion:
'* The counsel for the appellants have moved this court to grant them a rehearing in this cause; but, upon a re-examination of the subject and a review of the opinion, we have seen no reason for departing from our former views. The charter and by-laws of the company, in our opinion, required absolutely that the policy should be in writing, and this suit was instituted upon a simple verbal agreement — not on the original policy — nor was any modification of it alleged. The case of The Commercial Mutual Marine Ins. Co. v. Union Mutual Ins. Co., 19 How. 318 , so strongly urged and confidently relied upon, has no controlling application to this case. That was a suit in equity to compel the specific performance of a contract to make re-insurance on a ship. It was objected that by force of a statute in Massachusetts insurance corporations could make valid policies of insurance only *435 by having them signed by the president and countersigned by-the secretary. Rut the court said that they were of the opinion that that statute only directed the formal mode of signing policies, and had no application to agreements to make insurance. That case and the one we are now considering are totally dissimilar. The statute allowing amendments to be made in furtherance of justice, so as to make the pleadings conform to the proof, upon the most favorable construction can not be tortured so as to include the amended petition which was sought to be filed in this case. In every view in which we can regard the matter, the motion must be overruled.