Opinion of the court.

Where the words of any written instrument are free from ambiguity in themselves, and where the external circumstances do not create any doubt or difficulty as to the proper application of the words to the claimants under the instrument, or the subject-matter to which the instrument relates, such an instrument, said Tindal, C. J., is always to be construed according to the strict, plain, common meaning of the words themselves, and that in such cases evidence dehors the instrument for the purpose of explaining it, according to the surmised or alleged invention of the parties to the instru mert, is utterly inadmissible.*

All the facts and circumstances may be taken into consideration, if the language be doubtful, to enable the court to arrive at the real intention of the parties, and to make a correct application of the words of the contract to the subject-matter and the objects professed to be described, for the law concedes to the court the same light and information that the parties enjoyed, so far as the same can be collected from the language employed, the subject-matter, and the surrounding facts and circumstances.†

Ambiguous words or phrases may be reasonably construed to effect the intention of the parties, but the province of construction, except when technical terms are employed, can never extend beyond the language employed, the subject-matter, and the surrounding circumstances.‡

Apply that rule to the case and it is clear that the evidence offered by the defendants was properly excluded, and that the exception under consideration must be overruled.

2. Evidence was introduced by the plaintiff at the trial that his interest in the steamboat was worth much more than the amount for which the same was sold, and that it was understood at the time of the sale that the purchaser should assume and protect the plaintiff from all existing debts of the vessel and give a bond to that effect. Excep

*Shore v. Wilson, 9 Clark & Finelly, 565; Mallan v. May, 18 Meeson & Welsby, 517.

† Addison on Contracts, 6th edition, 918.

Nash v. Towne, 5 Wallace, 689.

Opinion of the court.

tion was taken by the defendants to the ruling of the court in admitting that testimony, which ruling is the foundation of the next assignment of errors.

Parol evidence is certainly not admissible to contradict, vary, or control a written contract, but the evidence in question in this case is not subject to any such objection, whether applied to the guarantee given by the plaintiff to his vendor or to the bill of sale given to the plaintiff by the purchaser of his interest in the steamboat. Much less was paid for that interest than its market value, the evidence of which was properly admissible as showing the surrounding circumstances at the time the bill of sale was executed, and also to show the circumstances which induced the purchaser to give the guarantee executed by the defendants.

3. Specifications of error under the third assignment involve the same question, or some phase of the same question, as that contained in one or the other of the two preceding assignments.

The defendants insisted in the court below, and still insist, that the phrase "steamboat debts" is a technical phrase, and that it did not include any debts except such as constitute a lien on the steamboat. Attempt is made to set up that theory by exceptions to the charge, as well as by exceptions to the rulings of the court, but several answers may be given to the theory, either of which is sufficient to show that the exceptions are not well founded: (1.) That the language of the guarantee is not correctly reproduced. (2.) That the phrase referred to is not a technical phrase within the meaning of the rules of evidence applicable in such cases. (3.) That by the true construction of the guarantee it includes all existing debts contracted for repairs, supplies, and running expenses for and on account of the steamboat, for which the plaintiff, as owner, was liable at the time of the sale and purchase.

Evidently the object of the agreement of guarantee was to secure the plaintiff against all liability arising from his part ownership of the steamboat. It was his liability and not that of the steamboat which was to be protected from "all

Opinion of the court.

claims and demands that may arise or be brought against the steamboat."

4. Certain requests for instruction were also presented by the defendants which were refused by the presiding justice, and the court here is of the opinion that all of them were properly refused.

Partnership may be proved by parol as well as by written. evidence, which is sufficient to show that the ruling of the circuit judge in refusing the first request is correct, and enough has already been remarked in response to the first exception to show that the other requests for instruction were properly refused, for the plain reason that every one of them sets up an erroneous theory of the guarantee which is the foundation of the suit.

Evidence of usage was offered by the defendants to limit the legitimate scope and operation of the instrument of guarantee, but it was excluded by the court for reasons so manifestly proper that no argument is necessary to vindicate the action of the court.*

Usage cannot be incorporated into a contract which is inconsistent with the terms of the contract; or, in other words, where the terms of a contract are plain usage cannot be permitted to affect materially the construction to be placed upon it, but when the terms are ambiguous usage may influence the judgment of the court in ascertaining what the parties meant when they employed those terms.

Apply those rules to the case and it is clear that the theory of the controversy assumed by the circuit judge in all his rulings and in the instructions which he gave to the jury is correct. Conclusive proof of that proposition is found in the language of the guarantee, by which the defendants covenanted to save the plaintiff free and harmless of any and all claims and demands that may arise or be brought against the steamboat, except such as were relinquished by the instrument in writing executed on the same day.

Judgment affirmed.

* Thompson v. Riggs, 5 Wallace, 679; Bliven v. New England Screw Company, 23 Howard, 431; Addison on Contracts, 6th edition, 985.

Statement of the case.

EX PARTE MEDWAY.

Where on certain facts found by the Court of Claims-it refusing to find as a fact a certain allegation which the petitioner in the suit requested it to find-that court has given judgment against the petitioner, and the petitioner has taken the record to this court, which, upon considering the case found, reverses the judgment of the Court of Claims and remands the cause "for further proceedings in conformity with law and justice," there is nothing which prevents the Court of Claims from setting aside the findings of fact which it had made on the first trial and from trying the case de novo.

Or petition for mandamus.

The case was thus: Medway had filed a petition in the Court of Claims for the recovery, under the Abandoned and Captured Property Acts, of the proceeds of ninety-four bales of cotton, of which he alleged himself to have been the owner, and which he alleged had been seized and sold by the United States, who now had the net proceeds, $17,386.20, in their treasury. A trial was had, and the court found as facts that the claimant was the owner of the number of bales stated, that they had been captured by the United States military forces at Wilmington, North Carolina, in February, 1865; that they had been turned over to the Treasury agent at Wilmington, and sold in New York, in August, 1865; and that the net proceeds thereof were in the treasury.

But it refused to find as another fact that which the plaintiff requested it to find, namely, "that the whole amount of net proceeds of the said bales was $17,386.20.”

Judgment was rendered against the plaintiff, who thereupon appealed to the Supreme Court.

The Supreme Court reversed the judgment and remanded the cause for further proceedings, "in conformity with law and justice." The record in the Supreme Court contained the foregoing findings, and showed the failure of the Court of Claims to make the computation and state the amount of proceeds.

Argument against the return.

The plaintiff then filed the mandate in the Court of Claims, and moved that court to proceed with the case from the point reached by the reversal, which proceeding he alleged would be "in conformity with law and justice." The court, however, refused to so proceed, and on the contrary, on the 5th of April, 1875, ordered that all the findings of fact originally made and filed, and upon which the case had been heard in the Supreme Court, should be set aside and held for naught, and that a trial be had de novo.

Mr. Thomas Wilson, for the plaintiff, now filed a petition in this court, setting forth these facts and praying that the judges of the Court of Claims show cause why a mandamus should not be issued to the said court, to compel it to vacate its said order of April 5th, 1875, and it proceed in obedience to the maudate of this court, and in conformity to law and justice in the case.

The judges of the Court of Claims showed for cause

1st. That the mandate of the Supreme Court left the Court of Claims to decide what further proceeding in the case would be in conformity to law and justice; and

2d. That it was in conformity to law and justice to set aside. the findings of fact which had been made on the first trial, and try the case de novo; and thereupon the said order of April 5th, 1875, was made.

The question now was upon the sufficiency of the return.

Mr. Thomas Wilson, for the petitioner:

The court below having once tried the case, and having decided every question of fact arising in it, except making the computation and statement of the amount in dollars and cents, and having filed its findings in the nature of a special verdict, and an appeal having been had to the Supreme Court, which reversed the judgment and remanded the cause for further proceeding, the court below should be now required to proceed from the point reached by the reversal, and cannot go back over and retry those questions of fact which were settled and determined on the former trial, and