#### Springfield Iron Co. v. Michael McIntyre.

1. Contracts—A Contract Construed.—Where an employe of an iron company, who sustained an injury, agreed to accept four dollars per week in orders on the company’s Store until he bad sufficiently recovered to return to his work, in satisfaction of all claims for damages which he had against the company on account of such personal injuries, it was held, that the contract should be construed as meaning that the payments should not cease until such employe had sufficiently recovered to return to work of a like character to that which he had been engaged in.

2. Construction of Contracts—A General Rule.—In construing a contract reference must be had to the circumstances surrounding the parties at the time it was entered into.

' 3. Cross-Errors—Abandonment of.—Where an appellee assigns cross-errors, and in his brief asks the court to affirm the-judgment appealed from, he will be deemed to have abandoned his assignment of cross-errors.

Assumpsit, on a contract. Appeal from the Circuit Court of Sangamon County; the Hon. Jambs A. Creighton, Judge, presiding. Heard in this court at the May term, 1897. Affirmed. Opinion filed December 2, 1897.

Conkling & Grout, attorneys for appellant.

Graham & Miller, B. Galligan and George A. Wood, attorneys for appellee.

Mr. Justice Glenn

delivered the opinion of the Court.

This was an action in assumpsit brought by appellee, Michael McIntyre, against the Springfield Iron Company, to *445the September term, 1896, of the Sangamon County Circuit Court. The case was tried by the court without the intervention of a jury. Appellee recovered judgment against the appellant for $32, being $4 per week for the eight weeks the appellant was found to be in arrears under their contract with the appellee, from which judgment the Springfield Iron Company prosecutes its appeal to this court. The facts upon which the court rendered judgment against appellant are as follows: On the 29th day of April, 1893, the appellee, while in the employ of the appellant, received a crush wound of the arm, nearly severing the arm and fracturing the lower bones. The arm was nearly severed between the elbow and the shoulder, from which injury it has become shriveled and the motion of the hand entirely lost, the arm drawing up and becoming stiff from the injury to the nerves. The result of the injury is, the appellee is unable to grasp anything; that the use of his fingers is entirely lost. At the time of the injury, to wit, on the 29th day of April, 1893, the following contract was entered into between the appellant and the appellee, to wit:

“ In consideration of the Springfield Iron Company paying mv hospital bill and doctor’s bill, amounting to $32, and the' payment to me of $8 in store orders and car tickets, the receipt of which is hereby acknowledged, and the further agreement of the Springfield Iron Company to pay me $4 per week in orders on their store until my arm may have sufficiently recovered for me to return to work, I hereby agree to accept and do accept the same, as evidenced by my signature hereto, in full satisfaction of all claims for damages I now have or may hereafter have against said company on account of personal injuries received by me at the works of said company on or about the 29th day of April, A. D. 1893. Signed, Michael McIntyre.”

The only subject of contention in this case is, what construction should be put on that clause in the written contract which provides for the payments until his' arm may have sufficiently recovered for him to return to work, the' appellant contending that when he was able to do any kind of work, then his arm had sufficiently recovered for *446him to return to work, within the meaning of the contract. This, we think, does violence to the language of the contract. In construing this it must be done in the light of the facts and circumstances surrounding the parties at the time it was entered into. The appellee at the time he received this injury was a man finely* developed physically and in good health. The parties doubtless contemplated that he would regain the use of his arm substantially as it was before the injury, and to avoid litigation and to secure to appellee compensation for the injury .he suffered from the negligence of appellant, entered into this contract. He was working for appellant whenever there was work to do, without 4fe,ny definite time as to his engagement. He was doing the heaviest of manual labor, breaking castings with a sixteen-pound sledge, taking out cinders from the furnace, wheeling ore, and using the shovel and pick. From these facts and circumstances it is not unreasonable to construe the contract as meaning that the payments should not cease until he had sufficiently recovered to return to work of a like character to that he had been engaged in, or at least to work coming within the scope of manual labor. This, to us, seems to be a reasonable construction of the contract. Any other would not give him compensation for the injuries he had sustained.

It is clear from the evidence that he is not able to return to any kind of manual labor with his arm. His arm is shriveled up, the motion of his hand is lost,- his arm drawn up and stiff from-injury to the nerve. He suffers pain constantly. The heat causes his fingers to swell and the cold shrinks them. There is nothing in the contract that indicates that it was the intention of the parties that appellee should return to work for appellant when his arm had sufficiently recovered for him to return to work. Had that been the intention' it should have been so stated in the contract.

In their brief counsel for appellee asks this court to affirm the judgment of the court below. From this we take it, they have abandoned their assignment of cross-errors.' Judgment affirmed.