#### ALEXANDER GORDON v. VIRGIL M. RAINEY et al.

Where the defendant entered into a penal bond to the plaintiff, with'a condition which recited that the plaintiff “ had contracted with the defendant to furnish a steam engine, fcc. and to put up a saw-mill frame of the best materials, &e. the said defendant to find every thing, erect the furnace and flue, &c., and to have the whole done in a convenient, durable, and workmanlike manner, &c., and to have the whole done” by a certain time, it was held, that the defendant was to furnish the engine and all the materials, and do all the work, and not the furnace and flue only; and that though there might be some ambiguity in the first part of the condition, as to who was to furnish the engine, fcc., yet by reading the whole instrument, it was clear that the defendant was bound to furnish all the materialá.and do every thing in discharge of his bond.

Covenant upon the following instrument: — “ Know all men by these presents, that we, Virgil M. Rainey, William M'Murray and Vincent M'Murray, are held and firmly bound unto Alexander Gordon, agent or president of the Union Steam Mill Company, in the sum of three thousand six hundred dollars, for which payment well and truly to be made, we bind ourselves, our heirs, executors, or administrators, unto him the said Alexander Gordon, his heirs, administrators, executors, assigns, or successors, sealed with our seals and dated this 20th day of February, 1836,

“ The conditions of the above obligation are such, that the said Alexander Gordon, agent or president, &c. hath contracted with the said Virgil M. Rainey, to furnish a steam engine, of power sufficient to drive two pair of four feet stones, with sufficient force to grind well and fast; and also to drive two saws, to saw fast, when the mills are not grinding ; and to put up a saw mill frame of the best materials, and framed steady, and the steam engine attached thereto, as well as to the grist mills, and fixed to the grist mills, so as to be easily detached when there shall be water to grind, the said Rainey to find every thing, erect the furnace and Hue or chimney, for the smoke to pass from the furnace, and to have the whole done in a convenient, durable and workmanlike manner, for the sum of eighteen hundred dollars; and to have the *488whole completed by the first day of May next, or June at farthest. Now if the above bounden Virgil M. Rainey shall well and truly have the above-named work done, then the above to be void; otherwise to remain in full force and virtue. Signed and sealed the day and date above-written.

“ N. B. If any delay should happen by sickness, or the engine cannot be got to the mill as quick as anticipated, if the saw-mill shall be started by the first of July, it shall be thought sufficient; provided the grist-mills shall be started by the first of May or June.”

The plaintiff assigned for breaches, that the said Rainey had not furnished an engine of the power specified ; that the said mills did not grind or saw well or fast in consequence of the want of sufficient power in the engine; that the saw-mill frame was of very bad materials, and very badly put up; that the furnace and flue or chimney were so badly constructed, as not to answer the intended purpose ; that the whole work was not done in a convenient, durable, and workmanlike manner, but was wholly worthless; and that the mills had not been started for more than twelve months after the time mentioned in the obligation. Pleas, the general issue, conditions performed. 'On the trial at Person, on the last Circuit, before his Honor Judge Saunders, after the plaintiff had proved the execution of the bond, and read the conditions of it, his Honor informed the plaintiff’s counsel, that he should instruct the jury, that by the instrument declared on, the defendant, Rainey, was only bound to erect “ the flue or chimney,” to find the materials for the same, and to construct it in a workmanlike, convenient, and durable manner, and in the time required by the instrument; and that the plaintiff was entitled to damages only for his having failed to do so. In submission to this opinion the plaintiff suffered a nonsuit, and appealed.

P. II. Mangum and Norwood, for the plaintiff.

W. A. Graham, for the defendant.

Daniel, Judge.

The defendants, as obligors, entered into a penal bond in $3,600, to Gordon, the plaintiff, with *489a condition. The commencement of the condition recites that Gordon had contracted with Rainey, the principal obligor, to furnish a steam engine, &c. Who was to furnish the steam engine, and do the other work mentioned in the condition is the question 1 We think, it is clearly to be collected, from reading the whole instrument, that it was not Gordon, the obligee in the bond, but that it was Rainey the obligor; and that, too, to exonerate himself from the penalty in which he had bound himself to Gordon in the bond. The subsequent part of the condition recites “ Rainey is to find every thing,” that he is “ to have the whole done in a convenient, durable, and workmanlike manner for the sum of $1800;” and “to have the whole completed by the first of May.” The condition further proceeds as follows : “ Now if the above bounden Rainey^ shall well and truly have the above named work done, then the obligation to be void.” The construction put upon the instrument by the judge, that Rainey was only bound to erect the flue or chimney, we think was entirely too limited. It seems to us that he was bound to furnish every thing necessary, which the entire work mentioned in the condition required to be furnished, and also all the articles required to be furnished; and have the whole work done in a workmanlike manner by the time mentioned in the covenant. This is the plain intention and understanding of the parties, to be collected from reading the whole instrument; and the law requires it to be executed according to the intention, thus ascertained, viz. when the intention and meaning can be fairly arrived at, by reading the whole instrument. Any doubt which might arise as to who was to furnish all the things and do all the work, on reading the first part of the condition, is certainly explained by reading the residue of it. We think there must be a new trial.

Pek Curiam. Judgment reversed.