Opinion,

All questions of fact properly presented by the pleadings and evidence were definitively settled by the verdict in favor of plaintiff, and he is entitled to judgment thereon for the amount found by the jury, unless the declaration is radically defective, not in form but in substance. Merely formal defects amendable in the court below, may be treated as amended here. Judgment was arrested on the sole ground that the declaration is insufficient to support the verdict, and that action of the court below is the subject of complaint in the several specifications of error.

As correctly stated by the learned president of the Common Pleas, it is substantially averred in the declaration that de*190fendant company insured the property of the firm composed of D. J. and P. D. Harley, in the firm-name of “ P. D. Harley;” that afterwards P. D. Harley, one of the firm, assigned all his interest therein, together with the policy of insurance, to his copartner, D. J. Harley, and thereafter the loss by fire occurred. That loss was D. J. Harley’s, and, if it is substantially averred that he, as such assignee, had a contract of indemnity with the company defendant, the declaration is sufficient. Profert of the policy was made, but oyer was not craved. We must therefore look to the narr. for the terms of the contract: Steph. Pleading, 68-9; Bender v. Fromberger, 4 Dall. 436, 440 ; in which it was held that, “ oyer not having been prayed, no part of the deed appears to the court, but that which the plaintiff has declared on. ”

In this case the contract as set forth in the declaration is in substance that upon a “ valuable consideration, ” the defendant “ company should be hable to pay or make good to the said assured, their and his executors, administrators and assigns, all such loss or damage, not exceeding the insurance, as should happen by fire to the property as above specified.” This is preceded by the averment of assignment, September 18,1884, by P. D. Harley to D. J. Harley of “all his right and interest of, in and to the said assured property.....and also all his title and interest in said policy of insurance, and all advantages to be derived therefrom,” and followed by the further averment “that from the said 18th day of September, 1884, up to and including the day the same was lost, injured, and destroyed by fire.....he was the sole and exclusive owner of the insured property,” etc.

The contract thus averred in the narr. — and under the pleadings we have no right to go outside of it — is substantially a contract of indemnity with the assignee, and, in the absence of any qualifying provision, must be so held. It follows therefore that the declaration exhibits a good cause of action, quite sufficient to sustain the verdict and justify the defendant company in paying the amount thereof.

Judgment reversed; and judgment is now entered against defendant on the verdict for five hundred and thirty-seven dollars and fifty cents, with interest, from January 15, 1887, the date of said verdict.