HUHN against LONG, 2 Whart. 200

The opinion of the court was delivered by Kennedy, J. The first error is a bill of exceptions to the opinion of the court below, overruling evidence offered of a conversation which took place between the plaintiff and Morrison, the witness, in the absence of Long, the defendant, relative to the plaintiff’s wanting Long to return, with his horses and carts,’ to work for him.

The conversation proposed to be proved happened at the house of the defendant, where the plaintiff called when the defendant was not at home, but meeting with the witness there, who was hired by the defendant at the time as a carter, to drive some of his horses, told him what he wanted of the defendant, The plaintiff offered this evidence, as he alleged, in order to show a demand made by him upon the defendant to cart for him, as mentioned in the agreement.' The counsel of the plaintiff claims that he had a right to give this evidence for this, purpose, upon the. ground that the witness was the agent of the defendant, and attending to his business as such.

Had there been any evidence given previously, tending to prove this, it would have been proper enough, perhaps, to have submitted the evidence offered, to the jury. But no such evidencewas given. Indeed, it is not pretended that any was given, from which the jury could have drawn the conclusion that the witness was the agent of the defendant, except that he “was paid for driving horses by Longmeaning that he was hired and paid by the defendant, as one of his carters.

But it is clear this was no evidence of his being the agent of the defendant, At the time of the conversation, he was not even actually engaged in driving any of the defendant’s horses, but was sitting in his house. Neither does it appear that the plaintiff requested the witness to make known to the defendant, that he wished him to return and cart for him; and if he had, it would have amounted to nothing, unless the witness had communicated it to the defendant.

What the plaintiff, therefore, said to the witness, in the absence of the defendant, ought not to affect the rights of the latter, further than the witness was permitted to testify, that is, merely to show that the plaintiff had called at the house of the defendant, after he had quit carting for him, and inquired for him, that he might let Him know that he wished him, to return, and resume his work again.

This it was competent for- the plaintiff to prove by the witness, for the purpose of repelling any presumption that otherwise might have been attempted to have been raised, of his having acquiesced in or consented to the defendant’s quitting work for him.

But further than this, we think the plaintiff had no right to go, and that the court below was right in refusing to permit him to treat the witness as the agent of the defendant, and to give evidence of what he said to the witness, as if he had been the agent of the defendant, attending in his place to his business, either generally, or in this particular transaction. All the remaining errors assigned, have reference to the charge of the court to the jury, and seem to have arisen from what we conceive was a misinterpretation of the agreement, entered into between the parties, bearing date the 16th of March, 1835.

They will therefore be considered together, as one error.

The Judge, in his charge to the jury, seems to have considered the agreement as containing different- distinct provisions, not immediately connected with, or depending: upon each other, when he ought rather to have regarded them -as relative parts of the same agreement,, all mutually depending upon each other, and necessary to be brought under the same view,.in order to ascertain the true meaning and intention of the parties.' It is the intention of the parties, which ought to be sought for in 'the construction of contracts; and, -if not inconsistent with legal principles or sound policy, it ought to prevail, and be our only guide.

But the judge, in expounding the agreement, seems to have disjointed it, and thus to have lost sight of the real intention of the parties, which we think is very clearly and distinctly presented, when we come to look at all the various parts of the agreement, and examine their mutual and relative bearing upon each other.

In the first place, the judge, according to the view which he took of the agreement, seems to have thought that the plaintiff, who is admitted to have been the absolute owner of the horses and gear, in question ,* and to have been in the possession of them, before and up to the time of the agreement, thereby parted with his right of property, as well as that of his possession to them •, for he commences his charge by saying, “ The plaintiff claims title to the horses in dispute, under the agreement of the 16til of March, 1835.” If such was the idea of the judge, we think it was a misapprehension, on bis part, of the true operation of the agreement, and contrary to the express terms of it.

The words of the agreement, in relation to this point are, “ and itris fully understood, that the said horses, gear, &c. is the property of John D. Huhn, until worked out or paid, this agreement to the contrary notwithstanding.” So that by the delivery of'the horses and gear to the defendant under the agreement, it is perfectly manifest that the right of possession was all that was intended to be passed, and all that he acquired thereby.

More than this he was not to have, until he paid the two hundred dollars, the price agreed on for the horses and gear, “ by carting brick, wood and sand, at seventy cents per thousand,” as therein stated. As soon, however, as this should be done, it is clearly implied, from the -clause of the agreement recited above, that the right .of property in the horses and gear was to. remain no •longer in the plaintiff, but to become vested in the defendant.

On the other hand, the right of possession which accompanied -the delivery of the horses and gear to the defendant under the agreement, according to the tenor thereof, was to cease and to become vested in the plaintiff, the moment that the defendant refused to pay the price agreed on, in the manner set forth in the agreement That such was the intent of the parties, is quite obvious from the following clause thereof:' “ and in case the said John Long refuses to cart at any time, when called on, the said horses, &c. are to be returned, and this agreement is null and void, and the said Long forfeit the balance of cash remaining with John D.

Huhn, as collateral security.” This last recited clause, which is the conclusion of the agreement, is not to be understood as the judge below would appear to have apprehended it.

He seems to have thought, that if the defendant had gone on and by his labour paid the plaintiff the price in full for the horses and gears in the manner stipulated by the agreement, before the first of January following the date thereof had come around; and then upon being expressly required by the plaintiff to continue carting for him until that time, he had refused, the plaintiff having fulfilled, and'being still willing to continue the fulfilment of the agreement on his part, the defendant would have been bound to a compliance with the plaintiff’s requisition in this respect, or otherwise, would have forfeited all right to the horses and gears.

That the defendant would have been bound to have complied with the plaintiff’s request under such circumstances, is certainly so far correct; but it is not a fair construction of the agreement to say, that a forfeiture of his right to the absolute ownership of the horses and gears would have been the consequence of his refusal; he would only have rendered himself liable to pay to the plaintiff such damages as the latter could have shown, he had thereby sustained.

This is the evident meaning of this part of the agreement; for the forfeiture there mentioned is not applied in terms to the right which the defendant might have acquired, under the contract, to the horses and gears, but to “ the balance of cash remaining with John D. Huhn as collateral security.” This “ balance of cash” is spoken of here as something mentioned previously in the agreement; for the definite

article “ the” is prefixed to it. Now the only part of the agreement, to which it can have a reference, and by which it must be explained, is that in which the mode of paying or satisfying the price agreed to be given for the horses and gears, is stated. It is in these words: “ the said John Long agrees to work out the amount (meaning two hundred dollars, the price of the horses and gears,) by carting brick, wood and sand at seventy cents per thousand, until the said horses and gears are paid for; and it is further agreed, that John D.

Huhn is to pay the said Long one-half of the amount, which he, the said John Long, earns for carting during the season until the horses and gears are paid for.” From this it appears, that one-half of the amount only of what should be earned by the defendant by carting for the plaintiff, was to remain in the hands of the latter, and to be applied’ to the payment of the price of the horses and gears; and this half thus to be left to accumulate until it should amount to the two hundred dollars, is evidently that which is alluded to and intended to be expressed by the phrase, “ the balance of cash,” &c.

But according to the tenor of the agreerrlent, as soon as- this balance should have increased to the two hundred dollars, it was then to be applied to the payment of the price of the horses and gears, that the right of property as well as the possession of them might become vested in the defendant. After being thus appropriated, and the defendant, in consideration thereof, having become the absolute owner of the horses and gears, it could not with propriety, under any view that can be taken of it, be called a “ balance of cash remaining with John D.

Huhn as collateral security.” Piad the defendant continued to have carted for the plaintiff, and by this- means paid him for the horses and gears, though it had been months before the first of January following the date of the agreement, the defendant under the agreement would have been entitled to. have demanded and.received the whole price of his work,, performed thereafter from time to time as he performed it; so that there would have been no balance of cash on account of it remaining with the plaintiff, unless the defendant had chosen to leave it so.

In no event, therefore, could the defendant, under the agreement, if he had once paid by his labour for the horses and gears, have forfeited his right to them. It was only before he had paid for them fully in this way, and of course before he had acquired the right of property iii them, that upon his refusal to cart for the plaintiff, he was to lose his right to the possession, and bound to return them again to the plaintiff, beside forfeiting whatever he had done towards paying for them-in part only.

The Judge also instructed the jury, if they should find that there was a demand made by the plaintiff upon the defendant to cart, and he refused, that they ought to find a verdict for the plaintiff without any regard to the state of the accounts between the parties; and that, under any view of the case, it would be wholly unnecessary to examine into their accounts.. To this we cannot give our assent.

It is contrary to the view and construction just presented of the .agreement; wherein it has been shown, that if from the accounts, it had appeared, that the plaintiff had been once fully paid the price of the horses and gears, then in no event would he have been entitled to recover in this action; while, on the contrary, if it appeared therefrom, that he had not been paid, and the defendant, without any sufficient cause, had refused to go on and pay therefor, according to the terms of the agreement, the plaintiff would have had a right to recover here.

But the state of the accounts was material for another purpose, in order to show whether the defendant was justified in refusing, as was testified he did, to work any longer for the plaintiff: for by., the express terms of the agreement, we have seen, that the plaintiff was bound to pay the defendant, from the start, for one-half of his work, as he performed it, until the other half should become equal in amount to the price of the horses and gears, so that he might be enabled to subsist his horses and defray other current expenses attending the doing of the work: but if from the accounts between them, it had appeared that the plaintiff was in arrear, and had refused to pay the defendant for one-half of the work actually done by him, it would have shown a clear violation of the agreement first on the’ part of the plaintiff himself; and would have furnished the defendant with a good excuse for refusing 'to go on with the further performance of his part of the agreement.

But if it be true-, as is alleged by the plaintiff’s counsel, that the plaintiff not only paid the defendant for the half of his work, but actually overpaid him for the whole of it, without taking the price of the horses and gears into the account at all; and the evidence given on the trial by the plaintiff, showing 'that the defendant had quit the plaintiff’s work, and that he declared he would work no more for him, be entitled to credit, the plaintiff ought, clearly, to recover in this action.

If the plaintiff were not in arrear with the defendant, in paying for one-half of the work done by him; according to the Contract, and the horses and gears not being paid for, the conduct of the defendant, as represented by the evidence, in quitting work for the plaintiff; and declaring at the same time, that he would work no more for him, was a plain and’ direct violation of his con-. tract, and entitled the plaintiff immediately to a return of the horses and gears; which the defendant ought to have given up, without waiting a demand to that effect from the plaintiff; We, therefore, think the judgment ought to be reversed; and a venire facias de novo granted; which is ordered accordingly; Judgment reversed, and venire facias die novo ordered.