case of a dog at a railway station, that in the course of a couple of hours tore the clothes of a traveller, attacked a cat at the signal-box, was kicked at by the porter, and then flew at and bit Mr. Smith. Smith v. G. E. Railway, L. R., 2 C. P. 4.

One servant who has been bitten through the negligence of a fellow-servant omitting to chain up a dog, of whose vicious habits both were fully aware, may recover against his master, the owner of the dog, for bites received by him. Muller v. McKesson, 17 N. Y. (Sup. Ct.) 44. In this case the plaintiff was a watchman, and his fellow-servant had charge of the dog, which was usually kept fastened, and when it was loosed notice had always been previously given the watchman, the court would not hold that the risk of being bitten was one incidental to his employment.

But a man is entitled to keep a ferocious dog for the protection of his premises, and turn it loose at night, provided its barking does not disturb the neighborhood, and create a nuisance. Add. on Torts, 191. And so where one Copeland, a carpenter, some eighty years and more ago, to defend his yard kept a fierce dog which was tied up all day and let loose at night, and his foreman incautiously went into the yard after dark knowing that the dog was at large after dark, and was thrown down and bitten, it was held that he was not entitled to an action for damages. Brock v. Copeland, 1 Esp. 203.

But a man has no right to put a ferocious dog so near the entry to his house that a person innocently coming there for a lawful purpose in the day-time may be injured by it; nor so near a private foot-path that its chain is long enough to enable it to bite people walking past. Sarch v. Blackburn, 4 C. & P. 300; Curtis v. Mills, 5 id. 489. And where a dangerous animal is put in such a position that even trespassers wandering through the premises are likely to be assailed by it without notice, the fact that the injured one is a trespasser is no defense (Loomis v. Terry, 17 Wend. 496); notice may be inferred where a trespasser entered at night into a close likely to be guarded by a dog. And if a fierce dog is placed near a spot which children are apt to frequent, the fact that the little ones are trespassers cannot protect the owner of the dog from liability. Wharton, § 926.

The putting up of a notice "Beware of the dog," each letter three inches long, will not exempt the dog's master from liability to an injured party, if the latter could not, or did not, read the warning. If the bitten one was lawfully on the road to the house, and was in fact ignorant of the notice, and of the danger from the dog at the time he was bitten by it, he will be entitled to compensation in damages. Sarch v. Blackburn,

supra.

If a dog is reported to have been bitten by a mad dog, it becomes the duty of the owner to be very cir cumspect in keeping it. Whether the dog be mad or not may be mere matter of suspicion, yet he ought to put it out of his dog's power to do any damage. Jones v. Perry, 2 Esp. 483. In this case it was supposed that the dog had been bitten by a mad dog, the defendant tied him in a cellar but the rope was long enough to allow of its getting out into the street where it bit and tore the plaintiff's child; the child died from hydrophobia, and the afflicted parents got thirty pounds damages; Lord Kenyon thought it was not a case for vindictive damages, as defendant did not know the dog to be mad or used to bite.

In Michigan, it was held that the owner who was in no manner in fault wat not liable for damages done by a rabid dog. Elliott v. Herz, 29 Mich. 202.

Of course, a person may lawfully keep a ferocious dog, and he has a right to keep a tiger; but in either case he keeps the animal at his own risk, and is responsible for any injury inflicted by the dog on a per

son free from fault. But in the case of the dog, the knowledge of the owner that the dog was ferocious must be alleged and proven, for all dogs are not ferocious, while in the case of the tiger such knowledge will be presumed from the nature of the animal. Laverone v. Mangianti, 41 Cal. 138; Rex v. Huggins, 2 Ld. Raym. 1585; Jenkins v. Turner, 1 id. 110.

Dogs must not only refrain from injuring man, but also from hurting man's companions, otherwise the owner will be liable even if the dog is not himself made answerable. If a dog attacks a team of horses and in consequence they run away and are injured, the dog's owner is liable to the horses' owner, if it be shown that the former knew of the vicious habits of his dog, and that the onset of the canine and not any bad traits in the equines was the cause of the run-· away. Wormley v. Gregg, 65 Ill. 251.

One dog has no right to act the part of a policeman toward another of his kind, and put him to death because he is going about at large unlicensed and without a collar, even though the dog-slayer has himself conformed to the city regulations as to license and collar. This was decided in Michigan (Heisrodt v. Hackett, 34 Mich. 283; 22 Am. Rep. 529), where the law is that any person may kill a dog that is at large unlicensed or uncollared; the learned judge held that a dog was not a person. A dog, however, frequently goes for a person.

Judge Allen, in Wiley v. Slater, 22 Barb. 506, considered at considerable length, but with some absence of a kindly feeling toward the dog kind, the rights of the owner of a dog beaten in a fight, to recover damages from the conquering hero's master. He admitted, however, that he had never before been called upon to administer the law in the case of a pure dog fight, or a fight in which the dogs, instead of the owners, were the principal actors. "I have had occasion," said Allen, J., "to preside upon the trial of actions for assaults and batteries originating in affrays in which the masters of the dogs have borne a conspicuous part, and have acquitted themselves in a way which hight well have aroused the envy of their canine dependents. The branch of the law, therefore, applicable to direct conflicts and collisions between dog and dog is entirely new to me, and this case opens up to me an entire new field of investigation. I am constrained to admit total ignorance of the code duello among dogs, or what constitutes a just cause of offense, and jutifies a resort to the ultima ratio regum, a resort to arms, or rather, to teeth, for redress; whether jealousy is a just cause of war, or what different degrees and kinds of insult or slight, or what violation of the rules of etiquette, entitle the injured or offended beast to insist upon prompt and appropriate satisfaction, I know not." The judge concludes in the following sage remarks: It is very proper to invest dogs with some discretion while upon their master's premises, in regard to other dogs, while it is palpably wrong to allow a man to keep a dog who may or will, under any circumstances, of his own volition, attack a human being. If owners of dogs, whether valuable or not, suffer them to visit others of their species, especially if they go uninvited, they must be content to have them put up with dog fare, and that their reception and treatment shall be hospitable or inhospitable, according to the nature of the particular temper and mood, at the time, of the dog visited. The courtesies and hospitalities of dog life cannot well be regulated by the judicial tribunals of the land. * I know of no rule that when two dogs fight, and one is killed, the owner can have satisfaction for his loss from the owner of the victorious dog. The owner of the dead dog would, I think, be very clearly entitled to the skin, although some, less liberal, would be disposed to award it as a trophy to the victor, and this rule would ordinarily be a full equivalent for the loss; and with that, unless the evi

**

dence differ materially from that in this case, he should be content."

Long since it was held in England that a man has a property in a mastiff, and where the mastiff falls on another dog, the owner of that dog cannot justify the killing of the mastiff, unless there was no other way to save the other. Wright v. Ramscot, 1 Saund. 84.

But in Massachusetts it has been decided that the law has long made a distinction between dogs and cats and other domestic quadrupeds, growing out of the nature of the creatures and the purposes for which they are kept. Beasts that have been thoroughly tamed and are used for burden or husbandry or for food, such as horses, cattle and sheep, are as truly property of intrinsic value and entitled to the same protection as any other kind of goods. But dogs and cats, even in a state of domestication, never wholly lose their wild natures and destructive instincts, and are kept either for uses which depend on retaining and calling into action those very natures and instincts, or else for the mere whim and pleasure of the owner. And dogs have always been held by the American courts to be entitled to less legal regard and protection than more harmless and useful domestic animals. Blair v. Forehand, 100 Mass. 136. The English occupants of the bench are by no means so anti-canine. "A dog," observed Lord Ellenborough, "does not incur the penalty of death for running after a hare in another man's ground. And if," continued his lordship, waxing wrothy, "there be any precedent of that sort, which outrages all reason and common sense, it is of no authority to govern other cases. A gamekeeper has no right to kill a dog for following game." So spake the judge, though the game-keeper was Lord Cawdor's (Vere v. Cawdor, 11 East, 569); and the law is the same though the owner of the dog has received notice that trespassing dogs will be shot. Corner v. Champneys, 2 Marsh. 584. But a dog chasing and pursuing game in a preserve might, it is apprehended, be shot if there was no other way of saving the game (Read v. Edwards, 17 C. B. [N. S.] 245); it must be proved, however, that the dog was in hot pursuit at the time he was killed. Barrington v. Turner, 3 Lev. 28; Protheroe v. Mathews, 5 C. & P. 586. If a man allows his sheep or his fowls to escape from his own land and trespass on his neighbor's, and his neighbor's dog attacks and worries them, he cannot justify the shooting of the dog in defense of his estrays. Add. 373. If a little dog chases trespassing sheep off his master's land and follows them, and the master does his best to call off his dog, no action is maintainable. Millen v. Fandrye, cited 4 Burr. 2094. The chasing of trespassing beasts by a mastiff is, however, unlawful. King v. Rose, 1 Freem. 347. If a dog goes into a neighbor's garden and spoils and injures his crops, no action will lie against the owner (Mason v. Keeting, 12 Mod. 336; Brown v. Giles, 1 C. & P. 118), unless the dog is of a peculiarly mischievous dispositition so as to be unfit to be at large, and he knows this. Read v. Edwards, 34 L. J. C. P. 32. But if the owner is not with him and have not him under his immediate control he can be seized for damage feasant (Bunch v. Kennington, 1 Q. B. 680), and if he is with him and is also a trespasser, the damages done by the dog is consequential upon the trespass done by the master. Beckwith v. Shordike, 4 Burr. 2093.

The American judges occasionally show regard for dogs, and even in the west it has been held that the habitual disposition of a dog to drive off stock trespassing on his master's premises is not a vicious propensity; and the owner of the stock has no right to kill the dog for so driving unless the dog is a nuisance in the neighborhood (Spray v. Ammerman, 66 Ill. 309); nor can one kill a dog that has neither done nor attempted on that occasion any injury, simply because he is trespassing and is suspected of misconduct when

previously on the premises. Brent v. Kimball, 60 Ill. 211. No one but the owner has a right to kill a dog, except where it is found killing, wounding or chasing sheep, or under circumstances which show that the dog has been recently so engaged, or where he has been recently bitten by a rabid dog or by one reasonably supposed to be so, or where a dog is ferocious and attacks persons. Brent v. Kimball, supra. Every man

must at law be taken to contemplate the probable consequences of the act he does (although experience proves the very reverse), so when a man caused traps, baited with strongly smelling meats, to be placed in his own land so near his neighbor's house so as to influence the nose and instincts of his dogs and cats and draw them in irresistibly to their destruction, it was held that the trap-setter was responsible to the neighbor for the injuries he sustained by the loss of his animals, although he had no intention of injuring him, and only meant to catch foxes and vermin (though by the way he was glad enough to catch dogs, and had offered his servants one shilling for every dog killed). It was considered that he would also be liable for any damages sustained by dogs tempted from the highway by the toothsome morsels. Townsend v. Wathen, 9 East, 277. It is not lawful to deceive even a four-footed animal. But the owner of a dog passing with his faithful companion through a wood, has no right of action against the owner of the wood for the death or injury of his dog, who, by reason of his own natural instincts and against the will of his master, runs off the path against a dog spear and comes to grief. Jordin v. Crump, 8 Mees. & W. 782. And if a dog greedily and rudely goes behind a counter in a shop and there feloniously applies to his own use bread and cheese left for mice and rats, and dies from the effects of poison spread upon the comestibles, his death does not lie at the shop-keeper's door though he die there. v. Bolling, 22 L. T. Rep. (N. S.) 799, Ex. One who keeps, for the protection of his family, a dog duly licensed and collared, and confined so as not to endanger persons lawfully on his premises, may recover its full market value, as a watch-dog, from a neighbor who kills it there without being attacked by it, although it was a dangerous animal and accustomed to bite those who came near it. Uhlein v. Cromack, 109 Mass. 273. But Chief Justice Redfield said, that if one who is injured, or liable to injury, by a ferocious and overgrown dog, chooses to right himself by abating the nuisance, he deserves to be regarded as a public benefactor, and the owner ought not to complain of his destruction, but ought to be grateful at escaping so easily. Brown v. Carpenter, 26 Vt. 638. Whether dogs have a commercial value at a given time or place is a question for the jury. Spray v. Ammerman, 66 Ill. 309.

Stansfeld

And where a common carrier lets a dog in his care escape, he is liable for the loss, as he ought to properly secure him (Stuart v. Crawley, 2 Stark. 286); but where a greyhound, secured in the way ordinarily adopted and obviously intended to be used, viz., by a collar and strap, was delivered to a railway company to be carried, and the greyhound during the journey slipped his head through the collar and was lost, it was held that the company was not responsible. Richardson v. N. E. R., L. R., 7 C. P. 75. One whose log, while trespassing upon the close of another person, kills a domestic animal of the owner of the close, is liable to pay full compensation for the whole injury done, though he had no previous knowledge of any vicious propensity in his dog. Chunot v. Larson, 43 Wis. 536.

In the days of Auld Lang Syne the law was wont to be that if a man had a dog that killed sheep, or hunted on his own account and destroyed game, the master of the dog, being ignorant of such quality, should not be punished for the killing; but if he had notice of the quality of the dog it was otherwise. Vin. Abr., Ac

tions H., pl. 3. Now all this is changed, and by parliaments and legislatures it has been ordained that for injuries done to sheep (and in some places to cattle as well) damages may be recovered from the owner of the dog, without the aggrieved party having to show a mischievous propensity in the animal, or the owner's knowledge thereof, or any neglect on his part. According to some of the statutes any one may kill a dog he sees worrying or chasing sheep, and magistrates may order any dog proved to be guilty of such conduct to be killed, and owners of such dogs keeping them with knowledge of their evil propensities are liable to penalties. As each State and county has its own particular laws on this point, time would fail were we to summarize them, and the energy of the most dogged reader of the ALBANY LAW JOURNAL would fail before they were all mastered.

An innkeeper is not bound to receive St. Bernard mastiffs into his inn, especially if they be of a fierce nature and in the habit of behaving in an uncleanly manner. Kelly, C. B., would not positively say that under no circumstances could a guest have a right to bring a dog into an inn; he said there might possibly be circumstances in which if a person came to an inn with a dog, and the host refused to put up the dog in any stable or outhouse, and there were nothing that could make the dog a cause of alarm or annoyance to others, the guest might be justified in bringing his companion into the inn. But Mr. Justice Manisty had no such hesitation and boldly said that in "his opinion a guest cannot, under any circumstance, insist on bringing a dog into a room or place in an inn where other guests are." Reg. v. Rymer, L. R., 2 Q. B. Div. 136.

Doubtless it will be a comfort to some of the many who have suffered from the bark or the bite of dogs to know that, although they cannot exactly be considered beasts of burden, still it is lawful, quite lawful, to make them work at tread-mills, turn-spits, or engage in any other serviceable employment. Walker v. Special Sessions, 4 Hun (N. Y.), 441. Of course, if they are cruelly used the S. P. C. A. may successfully interfere. R. VASHON ROGERS, JR.

ORAL CONTRACT-CONSTRUCTION OFQUESTIONS OF LAW AND OF FACT.

IN THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN. THE DETROIT STOVE WORKS V. PERRY. If there be any conflict as to the words used in an oral contract, or if the words themselves be ambiguous, the question of intent should be left to the jury. But if the words are clear and explicit, and the only difficulty is in the proper legal inference to be drawn from them, the rule is the same in oral as in written contracts, and it belongs to the court to give them their proper construction, even though the contract be incomplete in an essential particular. Plaintiff and defendant, being adverse parties to a proceeding before the Commissioners of Patents in Washington, agreed that each should furnish to the other six printed copies of their testimony. Plaintiff had ordered 100 copies for its own use. Defendant thereupon asked plaintiff to order thirty extra copies for him. Held, that plaintiff could only recover under that state of facts the extra cost of the thirty copies, and was not entitled to the proportionate cost which these bore to the whole edition of 130, copies. Held, also, that these facts did not present a question for the jury and that it belonged to the court to determine the legal inference therefrom.

mony taken on behalf of the plaintiff in a certain patent suit pending before the Patent Office at Washington. The plaintiff's testimony tended to show that the plaintiff and defendant were interested adversely to each other in this suit; that defendant came to Detroit to attend the taking of the testimony of plaintiff's witnesses; that it was agreed between them that each should furnish to the other six printed copies of their testimony; that three or four days after they had commenced taking testimony here, and about the 24th of September, 1874, defendant, desiring some extra copies of the plaintiff's testimony for circulation, went to the office of Col. Sprague, plaintiff's attorney, accompanied by his agent, one Liddell, and asked Col. Sprague how many copies of his testimony he was going to print; that Sprague replied that he thought they were going to print about one hundred, and that Mr. Perry, the defendant, then asked him to oblige him by ordering thirty copies for him, to which Col. Sprague replied, “certainly." That was all the conversation in the case.

It seems that Liddell, defendants' agent, had been to the office of the Free Press and asked the printer what he would furnish thirty copies for, to which he replied eight cents per page and five cents per copy for stitching. Afterward defendant concluded that he wanted forty copies, and obtained a letter from Mr. Sprague to the printer, of which the following is a copy:

"DETROIT, October 21st, 1874. "FRIEND EBY:-Mr. Perry says he gave you an order for thirty copies; We ordered one hundred. He now says he wishes forty; will be content with ninety, so we have nothing to do with this order for thirty, and have no objection to his having forty upon like terms. Yours, "SPRAGUE."

Further testimony was offered tending to show that subsequently an agent of the plaintiff's called upon the defendant at his hotel and presented him a bill for thirty copies of the testimony at $35 dollars each, amounting to $1,050, being the proportion which the thirty copies bore to the entire edition, which defendant refused to pay. There was no evidence that he received the thirty copies or that they were ever tendered to him.

Upon this testimony the court charged the jury that the plaintiff was not entitled to recover, and directed a verdict for the defendant. Plaintiff moved for a new trial.

Mr. G. V. N. Lothrop, for plaintiff.
Mr. Alfred Russell, for defendant.

BROWN, J. This motion raises the following questions: 1. Whether under the order, as stated by the plaintiff's witnesses, the plaintiff was entitled to recover the proportionate price which the thirty copies bore to the entire edition of 130 copies, or simply the extra cost of three copies. 2. Whether the intent of the parties to be gathered from this conversation and the other circumstances should have been submitted to the jury as a question of fact.

I have no doubt that if articles are manufactured separately, and without the use of a factor or instrument common to all, the cost of one being equal to every other. The instruction asked for would have been correct, and the plaintiff would have been entitled to recover the proportion which the thirty copies bore to the entire edition. So, too, if an edition of a certain work were published for sale, an agreement to sell at cost a part of such edition would imply an obligation to pay the proportionate amount of the cost of the composition as well as the press-work and paper; but where, as in this case, the composition had already been ordered by the plaintiff for its own use, and by a previous understanding the defendant was to have the benefit of such composition gratuitously in the six copies which each should furnish the other, I think it

quite clear the same rule should not apply. In other words, the plaintiff having already incurred the expense of composition, and having agreed to let the defendant have the benefit of that expense (for he could not carry out his contract to give the six copies without incurring it), it can make no further claim for the same by reason of the thirty copies, and could therefore only recover for the extra expense of those copies, namely, the press-work and paper. Suppose, for instance, that A and B had agreed to exchange photographs with each other, the cost of the first picture being five dollars, and that of each subsequent one one dollar. A then requests B to give him a dozen extra copies for his own use. It seems to me entirely clear that B would not be entitled to charge him any portion of the price paid for the negative on first copy since he had already agreed to give him that and could only charge for the extra price of the twelve copies. The case differs from this only in the fact that the composition of a book bears a much larger proportion to the cost of the press-work and copy.

2. Should the import of this contract have been left to the jury as a question of fact, or disposed of by the court as a legal proposition? In discussing this the following propositions may be considered as settled beyond dispute: 1. That before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge; not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Commissioners v. Clark, 94 U. S. 278, 284.

2. That the construction of written contracts is for "the court, except where the same is rendered ambiguous by the facts and circumstances surrounding the transaction.

How far the intent of the parties to be gathered from the terms of an oral contract is a question for the jury is not definitely settled.

In principle it would seem that if there be no dispute as to the words used, and no facts surrounding the transaction calculated to throw doubt upon the intent of the parties, or the meaning in which they use the words, there is no more reason for submitting the case to the jury than if the contract was in writing. Short v. Woodward, 13 Gray, 86.

It certainly cannot be true that oral contracts must always be left to the jury, for example, if, upon the sale of a horse, the vendor should say, "I know this horse to be sound, and warrant him to be so," and nothing else was said, it would not be error to instruct the jury that these words constituted a warranty. But if upon the other hand he should say, "I believe this horse to be sound, but will not warrant him to be so," it would certainly not be contended that the court` would be at liberty to leave this to the jury as evidence from which they might properly find a warranty. Of course, if there is a dispute as to the actual conversation or the words used are ambiguous in themselves, or the contract is to be gathered from a series of conversations and circumstances, the jury must determine the intent of the parties.

Thus where the vendor of a cow assured the purchaser "she was all right," it was held that it was properly left to the jury to decide whether the words were intended as a warranty of soundness. Tuttle v. Brown, 4 id. 457.

The counsel for the plaintiff in this case insists that where the words used do not extend to the whole contract, it must be left to the jury to determine what was the intention of the parties, and that as nothing was said in this conversation as to the price or payment, it should be left to the jury to ascertain what, under all the circumstances of the case, should have been paid. There are cases which seem to support this

theory or which at least go to the extent of holding that the construction of all oral contracts should be left to the jury. But the authorities are by no means in harmony.

In Copeland v. Hall, 29 Me. 93, the jury were left free to find what the language of the contract was, but they were restrained from the exercise of their own judgment, by a construction of the language by the court, which precluded them from finding the meaning of that language under all the evidence in the case. This was held to be error, it was said the whole contract should have been left to the jury to determine for themselves the proper construction to be given to it. This case seems to be in conflict with that of Curtis v. Martz, 14 Mich. 507-513, where it was said the jury should have been told in substance what would be the proper construction of the mortgages upon the different state of facts which might be found by them. So, in Herbert v. Ford, 33 Me. 90, it was said, "the jury had the right to determine the existence of the parol contract, its extent and limitations, they are to find not only what language is used, but its purport and meaning. In cases of written contracts, it is the duty of the court to define the meaning of the language used in them. But in verbal contracts such duty is confined to the jury. They are not barely to ascertain the words and forms of expression but to interpret their sense and meaning.' A like rule was made by the same court in Guptil v. Damon, 42 id. 271. Although in this case there was a strong dissenting opinion in Kun's Executor v. Young, 34 Penn. St. 60, it was said that the evidence of a promise to pay the debt of another must be clear, explicitland certain, that whether it be so or not is a question of fact for the jury. In Tobin v. Gregg, id. 446, the promise rested in parol proof, and that of the most unsatisfactory sort. The confessions and casual declarations of the defendant made to third parties, who had no interest that entitled them to full explanation, or stimulated them to understand and remember exactly what was meant. It was held, and there can be no doubt of the propriety of the ruling, that the testimony should be referred, in connection with the proofs upon the other side, to the jury to find whether the promise declared or had indeed been made. So, in Judge v. Leclaire, 31 Mo. 127, the law was assumed to be well settled that where the terms of a contract are to be ascertained from the oral evidence of witnesses, it is the province of the jury to determine from the evidence what is the contract; citing Islay v. Stewart, 4 D. & B. 160, in which it was said that where the controversy in a cause turns upon the meaning of the parties to a verbal agreement in relation to a matter upon which there is room for dispute, it is proper for the judge to leave it to the jury as a question of fact to ascertain what was the agreement of the parties in relation to such matter.

Opposed to this current of authority, however, are the decisions in Massachusetts and several other States. In Rice v. Dwight Manufacturing Company, 2 Cush. 80, it is said that the same rule of construction is applicable to parol as to written contracts. "The language used by parties while contracting may be proved, aud, when proved, is to be taken in its usual and ordinary acceptation, and however difficult it may be, and frequently is, to put a just construction upon it, still that duty devolves upon the court. The jury are to find whether or not the language was used, the court are to instruct the jury as to its legal effect, if used." A like ruling was made in Pratt v. Langdon, 12 Allen, 544, and in the Globe Works v. Wright, 106 Mass. 207-216. So, in Folsom v. Plumer, 43 N. H. 469-472, it was said to be competent for the court in its discretion, where a contract be merely verbal, and there is doubt as to the precise language used, or as to the understanding of the parties, to leave it to the jury to judge what is proved, and what language was used, and how it was

to be understood, subject to proper instructions as to the legal effect of such contract as they may find to have been made, and in Smalley v. Hendrickson, 5 Dutcher, 371, it was said that where the existence and terms of a parol contract were established the construction is a matter of law for the court. See, also, Kingsbury v. Buchanan, 11 Iowa, 387-395; Dudgeon v. Haggart, 17 Mich. 279.

I think the correct rule to be extracted from the cases is this: if there be any conflict as to the words used, or if the words themselves be ambiguous, the question of intent should be left to the jury. But if the words are clear and explicit, and the only difficulty is in the proper legal inference to be drawn from them, it belongs to the court to give them their proper construction. The fact that in this case one of the terms of the contract, namely, the price to be paid, was omitted, does not render it necessary that the construction of the contract should be left to the jury, if the circumstances surrounding the transaction leave no doubt as to the legal inference to be drawn from the conversation. It is true as suggested by plaintiff's counsel that the order in this case, standing alone, was consistent either with a gift to the defendant with an intent to charge him a proportionate price on the cost of the whole edition, or with an intent to charge him only with the cost of the extra copies. It is not suggested by either party that a gift was intended. I have already stated the reasons which lead me to hold that, as the plaintiff had already agreed to furnish the defendant the cost of composition in the six copies, it could not charge him the proportionate price of the whole edition. The evidence upon this point is to my mind so decisive, that if the jury should find such to be the intent of the parties, I should feel compelled to set aside the verdict. Under the view I take of the plaintiff's case, it could only be entitled to recover for the extra cost of the thirty copies, and as these copies were never received by the defendant, or tendered by the plaintiff, or, if such tender were ever made, it was accompanied by a demand for the proportionate price of the whole edition, I think the plaintiff is not entitled to recover. Of course, if the defendant received the thirty copies, he would be bound to pay the cost of them. But if they were tendered to him with a demand for the proportionate price of the whole edition, he would not be bound to receive them, and could not be held liable to pay any thing.

The motion for a new trial must therefore be denied.

PARTNERSHIP-LIEN OF REPRESENTATIVES OF DECEASED PARTNER.

NEW YORK COMMON PLEAS, GENERAL TERM, MAY, 1879.

HOOLEY V. GIEVE.

Where a surviving partner continues the business of the firm and uses the assets of the old firm in such continuance, disposing of the stock and assets and investing the proceeds in new stock, so that the identity of the old stock is gone, and mingles such new stock with property of his own, so that it cannot be separated, the representatives of the deceased partner have a lien upon the whole of the new stock to the exclusion of the individual creditors of the surviving partner.

A & B were partners. A dying, left a will wherein B was appointed trustee of his estate, with directions to withdraw A's interest in the partnership and invest it and pay over the proceeds as directed. B, instead of withdrawing A's interest, continued the firm business for years with A's money, and became insolvent. Held, that the cestui que trust under A's will had a lien on all of B's assets to the exclusion of his creditors.

engaged in business in New York with the defendant Gieve and one MacKenzie under the firm name of Abraham Hooley & Co. Hooley was owner of more than two-thirds of the assets of said partnership and the defendant Gieve was the owner of the balance. The defendant Cutts was employed as book-keeper by the firm of Hooley & Co., which firm at the death of Hooley was solvent and had a large surplus. Hooley died on the 28th of July, 1873, leaving him surviving the plaintiff, his widow and only children. The said Abraham Hooley, Jr., left a last will and testament, as alleged in the complaint herein, whereby, among other things, after devising certain specific personal property to the plaintiff, Lucy Hooley, and making certain bequests, amounting in all to the sum of $1,000, he gave and devised all the rest, residue and remainder of his property of which he should die possessed, both real and personal, to the defendants Abraham Gieve and Samuel G. Cutts, as trustees, to have and to hold the same upon certain trusts and for certain uses and purposes which are set forth in the said will in the words and figures following, to wit:

"Fifth. I direct my said trustees to withdraw my interest from the firm of Abraham Hooley & Co. as soon as practicable after my death, and invest the same, with all other moneys that may be on hand at the time of my death or that may thereafter come into their possession from sales of any portion of my personal estate in first mortgages on improved real estate in the city of New York, State of New York, or in Jersey City, State of New Jersey, at not less than current rates of interest, or in registered bonds of the United States government.

"The real estate of which I shall die seized I direct shall not be sold.

"Sixth. I further direct my said trustees to pay over to my wife all the rents and profits and income of my estate so long as she may live.

"Seventh. Upon the death of my wife the said trustees shall divide my entire estate into as many shares as there shall be children of my body then living and the children that shall have died leaving descendants.

"Said shares shall be of equal amount of value, but need not be separately invested, as my only purpose in so dividing my estate is to afford an easy method of fixing an amount or proportion which my devisees or legatees are from time to time to receive.

"Eighth. The said trustees shall transfer one of the said shares to each of the children of my body, after the death of my wife as aforesaid, such transfer to be made immediately to those who are twenty-one years of age or over, and to those under twenty-one years of age as they shall successively attain the age of twenty-one years."

"And the said Abraham Hooley, Jr., by his said will, appointed the defendants, Abraham Gieve and Samuel G. Cutts, executors, and the plaintiff, Lucy Hooley, executrix of said will."

On the 4th of September, 1873, this will was admitted to probate by the surrogate of the city and county of New York, and on the 13th day of September, 1873, by the surrogate of the county of Hudson, State of New Jersey, and letters testamentary were issued thereon to the defendants Gieve and Cutts.

After Hooley's death the business was carried on by Gieve and MacKenzie, as surviving partners, until January 1, 1874.

On or about January 1, 1874, a copartnership was formed by Gieve, Cutts and MacKenzie, under the firm name of Abraham Gieve & Company, and this new firm took possession of all the assets of A. Hooley & Co., and proceeded to do business with them until some time in 1877. No other stock or capital was put into the firm. Cutts and MacKenzie furnished nothing whatever.