This action is brought by petition founded upon an instrument of writing charged to have been executed by defendant. The instrument is not filed with the petition, nor is it alleged therein to be lost or destroyed. Defendant’s motion to dismiss the *220case, based on such ground, was overruled. The instrument sued upon is a policy of fire insurance charged to have been executed by defendant. ■ The motion should have been sustained. Hannibal & St. Joseph Ry. Co. v. Knudson, 62 Mo. 569; Rothwell v. Morgan, 37 Mo. 107; Dyer v. Murdock, 38 Mo. 224; Peake v. Bell, 65 Mo. 224, and cases cited. Plaintiff seeks to avoid his failure to file the policy on the grounds which he shows aliunde the petition, viz., there was a separate written application for insurance,' made and signed by him before the policy was issued, which, by the terms of the policy, became a part thereof, and that therefore the instrument sued upon was, in effect, executed by both parties and not subject, under adjudications in this state, to the provisions of section 3560, Revised Statutes, 1879, requiring instruments “executed by the other party ” to be filed. The difficulty with this contention is that these matters are not shown by the petition, if, indeed, they are not contradicted by it.

The petition refers to nothing but the policy, which it charges to have been executed by defendant.

It is upon the petition and the instrument filed with it, or if not filed, to the reasons for the omission, that the court must look to in passing' upon the motion which attacks the case for this defect.

The judgment is therefore reversed and the cause dismissed.

ON MOTION FOE REHEARING.

On further consideration we are of the opinion that, though the motion to dismiss should have been sustained, yet as it appears from the record made at the trial after the motion was overruled that the policy of insurance is based on a written application made and signed by plaintiff, which application is by the policy made a part of the contract, thereby making the contract in legal effect an instrument signed by *221both, parties, we have concluded it would better subserve the ends of justice to remand the cause that plaintiff may have an opportunity to amend his petition so as to show the facts making the instrument sued upon to be a contract executed by both parties, and therefore not necessary to be filed, section 3560, Revised Statutes, 1879, as before stated, not covering such an instrument. The Mo. Pac. Railway Co. v. Atkinson, 17 Mo. App. 484, and cases cited.

The motion for rehearing will be overruled,