#### ISHAM YOUNG vs. WILLIAM JEFFREYS and SAMUEL HARRIS.

June 1839

Where a subscription was raised for building a house of worship for a religious society, and upon the letting of the building at auction by certain commissioners appointed for the purpose, the defendants, who were not shown to have any other concern with the transaction, declared that if or when■ the work was done according to certain written specifications, and accepted by the commissioners, they would pay the sum at which the building should be hid off, and the plaintiff became the contractor and executed the work, but it was rejected by the commissioners upon the ground that it was not executed according to the specifications in four particulars, in two of which, however, it was shown that an alteration had been made with the assent of the defendants, it was held, that the alteration in the building, with the assent of the defendants, modified the contract to the extent of that assent, but left it subsisting as to the other particulars; and that as to them the acceptance of the work by the commissioners was an essential term of the defendants’ engagement, without which the plaintiff could not recover; and it was held further, that the plaintiff could not recover upon the common count for work and labour done.

W’hether the piaintiff might not obtain compensation in some forum, in case the acceptance by the commissioners was rendered impossible by accident — or may not be entitled to redress in some form, if that acceptance has been withheld maliciously or by fraudulent combination, Quere?

The effect of a contract is a question of law. Where a contract is wholly in writing and the intention of the framers is by law to he collected from the document itself, there the entire construction of the contract— that is, the ascertainment of the intention of the parties, as well as the effect of that intention, is a pure question of law; and the whole office of the jury is to pass on the alleged written agreement. Where the contract is by parol, the terms of the agreement are of course a matter of fact; and if those terms be obscure or-equivocal, or are susceptible of explanation from extrinsic evidence, it is for the jury to find also the meaning of the terms employed; but the effect of a parol agreement, when its terms are given and their meaning fixed, is as much a question of law as the construction of a written instrument.

This was an action of assumpsit in which the plaintiff declared in a special count, and also in the common count for work and labor done.

Upon the trial at Franklin, on the last Fall circuit, before his Honor Judge Saunders, it appeared that several per*217sons belonging to the Methodist Society, had subscribed sums of money for.building a meeting house, that the build-~ ing of the house was let out publicly to the lowest bidder by commissioners; that at the bidding a specification of the building required — of its dimensions, form, materials, and workmanship, was read aloud, and that the defendants, who were not shown to have any other concern with the transaction, thereupon declared and promised that “if the work was done according to the specifications, and accepted by the commissioners” (according to the language of some of the witnesses,) or “ when the work was done and accepted by the commissioners,” (according to the language of other of the witnesses,) they would pay the sum at which the building should be bid off. The plaintiff became the lowest bidder at that auction, and having, as he alleged, finished the building, tendered it to the commissioners, who rejected it as not having been completed according to the specifications. The commissioners objected, 1st, that the building wanted two girders, which, by the specifications, were required to be erected throughout its entire length, and that instead thereof, there were three girders across its breadth; "2ndly, that the windows" instead of having all of them sixteen lights as re-quiredin the specifications, had, those in front, eighteen lights, and those in the rear, fifteen only; 3rdly, that the weatherboarding instead of showing not more than six inches, showed in some places six and a half inches, and in others six and three quarters inches; and 4thly, that the shingling of the roof had been done unfaithfully. The plaintiff offered evidence to show, with regard to the two first objections, that the changes in the specifications therein embraced, had been made with the approbation and consent of the defendants — and to shew that the other two objections were frivolous and unfounded. It was insisted by the defendants that, admitting the facts to be established for which this evidence was offered, the plaintiff’s case was not thereby sustained, because the approbation of the work by the commissioners was a condition of the engagement of the defendants; and they submitted a motion for a nonsuit. By the assent of the parties, this motion was reserved, and the case submitted to the jury, whose verdict was to be subject to the opinion of the *218Court on the matter reserved. His Honor instructed the jrt-ry that if the plaintiff established to their satisfaction that lie had completed the building in all respects agreeably to the specifications, except so far as they had been changed by the direction or consent of the defendants; and that the other objections taken by the commissioners were frivolous and unfounded, he was entitled to recover. The plaintiff had a verdict,, subject to the opinion of the Court on the matter reserved; and the Court upon that verdict rendered a judgment for the plaintiff, from which the defendants appealed.

Battle and W. H. Haywood for the defendants,

contended that the plaintiff could not recover upon the count for work and labour done, because it was not done for the use and benefit of the defendants, and that if they were liable at all, it must be on their special engagement. But, the counsel argued, the plaintiff was precluded from recovering on the special contract, because the acceptance of the building by the commissioners was a condition precedent; it was an essential term of the defendánts’ engagement, and without which they could not be made responsible. If the contract had been in writing then the cases of Morgan vs. Birnie, 9 Bingh. Rep. 672 (23 Eng. Com. Law Rep. 414) and De Vile vs. Arnold, 10 Price 21 (4 Exch. Rep. 266,) would be expressly in point against the. ptaintiff. But the contract being by parol can make no difference. Where the terms of a parol contract are ascertained, its construction is a question of law, and it must receive the same construction, as if the terms were in writing.

Badger, for the plaintiff,

insisted that the acceptance of the work by the commissioners was only a mode of ascertaining whether it had been done according to the specifications, and that it was a question for the jury to say whether the work had not been done according to the written specifications, except so far as alterations had been made, with the assent of the defendants, and whether the grounds upon which the commissioners rejected the work were not frivolous and unfounded. That the contract being by parol, its construction was a matter wholly for the consideration of the jury. That the defendants, having taken upon themselves to direct alter*219ations, had altered the contract, and the plaintiff might, at any rate, recover upon the common count. L

Gaston, Judge;

after stating the case as above, proceeded as follows: I am instructed to declare the opinion of this Court, that the judgment rendered below is erroneous; that on the matter reserved, the law is for the defendants; and that under the agreement of the parties, the verdict is to be set aside, and there is to be a judgment of nonsuit.

The Court assents to the propriety of that part of his Hon- or’s opinion which holds that the jury might consider the special contract made between the plaintiff and these defendants at the time of bidding, modified in the particulars and to the extent which had been subsequently agreed upon between them and the plaintiff. If, therefore, the commissioners had rejected the building because of these changes, and these only — and had approved of it as conforming to the specifications in all other respects, the defendants would have been liable to the plaintiff upon their agreement. But the Court holds, that inasmuch as the commissioners rejected the building because in their judgment it did not conform to the other specifications, then, however unfounded and frivolous these objections of the commissioners might be deemed by the jury, the defendants were not liable to the plaintiff upon the agreement given in evidence; and which, according to the practice that obtains with the profession where a formal declaration has not been previously drawn out at length, must be understood as the agreement contained in the declaration. This opinion is founded upon the principle that the defendants are bound so far and so far only as they consented to be bound. Now, all the evidence of their agreement made the “ acceptance” of these commissioners one of the conditions of their engagement. It is immaterial which set of words testified to by the witnesses was used — -whether to pay if the commissioners accepted or when the commissioners accepted; for unless these words do not mean what they obviously import, the addition of them manifests that the commissioners were to pass upon the question whether the work was completed according to the specifications. And the o*220pinion is deemed by us erroneous, because in effect it strikes out of the agreement one of its essential terms — and holds the defendants bound to pay without or before such acceptance, w^eu l’inve consented to pay only if or when the acceptance shall take place.

prudem and common stipulation contL-oTer-síes, that tiie cnn-ihe°vo°k °f some ons in whosejudg-is parFieshave &the^udí-mem of this not be d¡s-íevise'fbjFa com-taud

There'is nothing unreasonable — much less illegal in such a condition. Whether a work of art has been done with proper materials and in a workmanlike style, is an enquiry which honest differences of opinion may prevail even among persons skilled in the art, and on which men of ordina- ■ . _ ' . . P ry pursuits are very unfit to pass. It is, therefore, m agree-for works of this kind, a prudent and common stipulation for the prevention of controversies, that the construe-' . tion of the work shall be determined by some persons m whose judgment the parties have confidence. If, however, judgment of the forum appointed by the parties is to be or revised by a court and jury — the stipulation . ° unmeaning-.

There can be no question but that the view entertained by C°urt would prevail, if the agreement between these parties bad been in writing, and contained a stipulation in the words used by any of the witnesses who testified as to. the agreement. Morgan vs. Birnie, 9 Bing. Rep. 672 (23 Eng. Com. Law Rep. 414.) Devile vs. Arnold, 10 Price 21 (4 Exch. Rep. 266.) It is supposed, however, that inasmuch as the contract was by parol, the construction of the contract was a matter wholly for the consideration of the jury. If by construction be meant the ascertainment of the agreement of the parties, the proposition is admitted; but if thereby be meant the ascertainment of the effect of the agreement, then, we apprehend, the proposition is erroneous. The effect of a contract is a question of law. Where a contract is wholly in •writing, and the intention of the framers is by law to be collected from the document itself, there the entire construction of the contract — that is, the ascertainment of the intention of the parties as well as the effect of that intention, is a pure question of law; and the whole office of the jury is to pass on the existence of the alleged written agreement. Where the contract is by parol, tho terms of the agreement are of *221course a matter of fact; and if those terms be obscure or equivocal, or are susceptible of explanation from extrinsic idence, it is for the jury to find also the meaning of the terms employed: but the effect of a parol agreement, when its terms ... ..... . . are given and their meaning fixed, is as much a question oí law as the construction of a written instrument.,

The propriety of the nonsuit depends on” the effect of the terms of the agreement as offered in evidence. There is nothing in the terms employed ambiguous or equivocal; and if there were, there is no suggestion that the ordinary meaning was not the meaning of the parties. The Judge therefore had a right to declare the legal effect of an agreement in those terms, and the verdict being, by the assent of the parties, taken subject to his judgment thereon, the matter thus referred to him was a pure question of law.

The plaintiff, under the circumstances of the case, was not, in our opinion, entitled to recover upon the common count for work and labour done. The liability of the defendants was founded solely upon their special agreement. The change by mutual assent in respect to some of the specifications of the work to be done under that agreement, left the agreement in full force as to all its other parts.

Whether the plaintiff might not obtain compensation in some forum, in case the acceptance by the commissioners was rendered impossible by accident — or may not be entitled to. •redress in some form, if that acceptance has been withheld maliciously, or by fraudulent combination, we are not called upon to determine. It is enough for us now to say that upon the agreement alleged, the defendants are not liable, because by that agreement their liability was made to depend on the judgment of the commissioners that the work had been done according to the specifications.

Per. Curiam. Judgment reversed.