#### GEORGE W. SWEPSON v. A. T. SUMMEY.

Where the terms of a contract are certain, their construction is for the Gourt, — not for the jury.

Where a negotiation was pending for the settlement of a debt of about $30,000, and a question arose as to what would be the exact balance after applying certain payments, &c, — such balance having been assumed by the parties to be a certain amount, it was also agreed that if it were more than that — •a few hundred dollars either way should not matter ; Held, that, considering the amount of the whole debt, $2160.00 might be included in the expression a few hundred dollars.

Assumpsit, tried before Henry, J., at December Special Term 1869 of Buncombe Court.

Tbe facts appear sufficiently in tbe Opinion of tbe Court.

There being a dispute as to wbattbe parties meant by tbe yerbal contract between tbem, as to tbe expression of wbicb there was no dispute; His Honor left it to tbe jury to say what that meaning was.

Verdict for tbe defendant, &c., and appeal by tbe plaintiff.

Phillips & Merrimon, for tbe appellant.

No counsel, contra.

Read®, J.

Where tbe terms of a contract are certain, and there is no evidence that tbe terms were used in any other than their ordinary sense, tbe construction or legal effect, is for tbe Court, and not for tbe jury.

It was error therefore to leave tbe construction of tbe contract to tbe jury. This error could be cured, however, if tbe jury bad found correctly: but such is not tbe fact.

Tbe defendant having paid to tbe plaintiff all of a certain debt, supposed to be $30,000, except a supposed remainder of $5,500, it was agreed that tbe supposed remainder should be paid with $2,500, in such notes — currency—as tbe plaintiffs attorney would receive. It was then suggested that tbe remainder might be more than $5,500, and thereupon, it was agreed that a few hundred dollars either way would *294make no difference, and it should be settled on the same basis as the $5,500 It turned out that the remainder was. $2,160 more than was supposed, and then the defendant said that his promise did not embrace so large aremainder, and declined to pay more of the excess than $350, but offered to pay ten cents .in the dollar upon the excess of the remainder over the $350.

It is evident that the agreement was, that the remainder of the debt, whatever it might he, was to be paid: there is. nothing to indicate that any portion of the debt was to remain unpaid. But then it is said that the defendant’s promise was only of “a few hundred,” and that $2,160 are beyond that.

The answer is that the sum was purposely left indefinite-in order that it might embrace the whole. And why may not u a few hundred” embrace twenty-one hundred, when dealing with so large an amount as three hundred hundred ? It is only as two is to thirty. If the parties had been settling a three hundred dollar debt, and the promise had been that an uncertain remainder of a few dollars should be paid, would it be pretended that a few dollars would not embrace twenty-one dollars, especially when the remainder is tobe paid at the rate of fifty cents in the dollar?

There is error.

Pee Curiam. Venire de novo.