It must be remembered that the complainant’s case in this bill cannot stand upon any contract to insure. Contracts of insurance must be in writing: Code of 1873, section 2794. To justify a verdict for the complainant, it must appear that by tiie conduct of the company’s agent it has been put in such a *568situation as that it is liable for damages for his act, or for his failure to act. It is not sufficient that the agent, as an individual, has done something for which he would be liable; the act proven must be some act of the agent representing the company. If, for instance, the evidence shows that Bowers wrote to Rust, as a friend, asking him to see Cromwell, get the marks and the mode of shipment of the cotton, cause it to be insured and draw on him for the premium, and if Rust undertook to do so and failed, and so misled the complainant as to prevent him insuring, in fact, then, however, Rust might be chargeable, the company would not be. The basis of the right to recover is, that the acts which misled, if there were such acts, must be Rust’s acts as the agent of the Underwriters’ Company. As the case went to the jury — there being a disclaimer of any verdict against Rust — to justify the verdict it must have been shown that Rust did certain acts as the agent of the defendant; that those acts were of a nature calculated to lead them to believe the sixty bales of cotton were insured by Rust, as the agent of the defendant, and that they did so believe, and failed to insure in fact.

We do not think there is any evidence in the record to justify the verdict, to make out these necessary ingredients of a case for the plaintiff. It appears that Rust was the agent, taking river insurance for three companies, and that he was also a warehouseman, having cotton in store for this very plaintiff. Two of these companies were represented at Albany by Rust, and at Columbus by Bowers. The Underwriters’ was represented at Columbus not by Bowers but by Wilcox. The plaintiff applies to Bowers (not the agent of defendant.) Bowers declined, because, to take the insurance would be to interfere with the Albany agency of those companies which he represented at Columbus, and Rust, at Albany. As the plaintiff was an old customer and friend, he, however, made himself busy to get the cotton insured. He applied to Wilcox, the defendant’s agent at Columbus. Wilcox declined. He had told the plaintiff that if he failed with Wilcox he would instruct Rust to insure; and he wrote to *569Rust the letter of the 6th of February. Naturally one would suppose, as this was a letter from one agent of these companies to another agent of the same companies, that if Bowers was writing to Rust as an insurance agent at all it was as agent of his own companies. But he does not, in terms, address Rust as an insurance agent at all, nor does he write as an agent. His letter is to Rust as an individual, and he signs it as an individual, and he testifies that he did not have any particular company in his mind when he wrote ; and, doubtless, that was the fact. He intended to ask Rust to insure in any company he might see fit, and Rust would have fully complied with his request as well as with the intimation contained in his reply to that request, if he had insured in any of the companies he represented, or in any other good company represented by some other person at Albany. Nor is there in Rust’s reply anything to show that he was acting as agent of the defendant. He writes as an individual. He signs his name Y. G. Rust, with no affix of agent for anybody. It is giving, too, a very large effect to Rust’s letter to infer from it that he promises to insure at all. He acknowledges the receipt of Bowers’ letter, and says that Mr. Cromwell is shipping sixty bales by the steamboat, and will ship the balance in a short time, but he does not say he will insure as Bowers had requested. It is very probable that Bowers did think from this that Rust would do as he requested him. But this thought is not founded on any promise in the letter, but is only an inference founded in the relations between him and Rust as friends, knowing- each other and having confidence in each other. Certainly there is nothing in the letter of Rust to justify an inference that Rust would insure as agent of the Underwriters’ Agency. So much for the letters of Bowers and of Rust. Rust showed Cromwell Bowers’ letter, and Cromwell gave to Rust the marks of the cotton, sixty bales, and informed him that they were on board the-steamboat.

We think it very probable that Cromwell supposed Rust would insure them from this act, though it would be going *570very far to hold Rust bound, even as an individual, for damages for not insuring. He was under no obligation to do it. His undertaking, if he did undertake, was gratuitous, and if he is liable at all, it is only because Cromwell, trusting to this, took no further steps. Can any one think, if Cromwell had been instructed by his father to insure, (he says he was not,) that he would have been satisfied as the matter stood.

But there was nothing said by Rust to Cromwell, nor by Cromwell to him, to indicate that Rust, in showing Bowers’ letter and in getting the marks of the cotton, was acting as the agent of the Underwriters’ Agency. Cromwell says distinctly that nothing of the kind occurred. It is true that in one of his answers he does say that no other company was mentioned but the Underwriters’ Agency. But it is plain that, in this, he is referring to the fifty bales insured in that company, in March, since he says several times that at the interview in February, when Rust showed him Bowers’ letter, and he gave the marks of the cotton, nothing was said as to what company it was to be insured in. Is not the presumption just as strong that it was to be insured in the Home or ACtna as in the Underwriters’ ? Nay, is not the inference just as strong that, in getting these marks, Rust was not acting as the agent of any of the insurance companies, but as a warehouseman, and as the agent of the plaintiff?

We do not think the fact that the fifty bales was, after the first lot was lost, (after Rust had refused to recognize it as insured, and repudiated the inference they sought to draw from, his letter of the 6th of February, and his conversation on that day with Cromwell, taking the marks, etc.,) has any thing to do with this suit. It seems to us absurd to say that because Rust, in March, on the special application of Cromwell, to insure the fifty bales in the Underwriters’, did so in- sure it, receiving from him the premium in cash, is to be held as . acting as the Underwriters’ Agency, in his letter of the 6th of Februaiy, and in his acts of that date, as testified to by Cromvwell. Had he, on the application of Cromwell, insured this -.fifty bales in the Home or Aitna, would that have shown he *571was, on the 6th of February, acting for the Home or .¿Etna? The only use that can be made of this insurance in March is, to show that Rust, in agreeing to look to Bowers for his storage, did so in view of Bowers’ first letter. But this does not throw any light on the question as to whether Rust was acting for the Underwriters’ when he spoke to Cromwell on the 6 th of February, and when he wrote the letter of that date to Bowers. If it indicates anything it is that Rust was acting as a warehouseman, because, in insuring the fifty bales, he gets and credits the cash for the insurance, and charges Bowers with the storage.

It is undoubtedly true that Mi\ Rust’s conduct and his testimony does not, in view of what the other witnesses say, appear to be quite free from blame. We are not prepared to say that the evidence, taken altogether, does not show that when he spoke to Cromwell, and when he wrote the letter of the 6th, he did intend to insure both lots of cotton; but we are very clear that the evidence does not show that, as agent of the defendant, he undertook to do so. Had he insured both lots in the Home or .¿Etna, or had he gone to some other insurance agent and insured them in some company he did not have anything to do with, he would have done everything Bowers requested him to do, everything Cromwell thought he was about to do, and everything Bowers supposed, from his letter of the 6 th, he had done. Under such a state of facts, it seems to us that it is entirely gratuitous to charge the Underwriters’ with the damages flowing from Rust’s failure to comply with Bowers’ request.

Had Bowers written to Rust as agent of the Underwriters’, and Rust showed Cromwell such a letter — had Rust replied as such agent — had Rust been the representative of no other company doing that kind of business — the verdict might have been sustainable, though, even then, it would have been an extreme case.

If, when the law requires a contract to be in writing — men trust to mere words — it ought to be a strong case to make a *572principal liable for the act of his agent in promising, by parol, to do that which, when done, must be done by writing.

Judgment reversed.