#### A. W. SILVERTHORN *v.*SAMUEL R. FOWLE.

Where a contract is so obscurely worded that the Court cannot tell what its meaning is, it is error to leave it to a jury to pass on its meaning, but the Court should tell them it could not be recovered on;

Where some of the terms, in which a contract is expressed, are words of science, or art, which require the evidence of experts to explain them, the jury, of necessity, must pass upon the meaning of those words; but being ascertained by them, the duty of the Court is, still, to give a construction to the contract.

Where there are not such terms, the construction is entirely with the Court.

AotxoN of AssuMPsrr, tried before his Honor, Judge Manlt, at the /Spring Term, 1857, of Hyde Superior Court.

The plaintiff declared on a special contract made with the defendant, that the latter was to *“*take a raft of timber at $7,50 per thousand, which was to be prepared by the plaintiff in Grennanton Bay, and thence towed by the defendant’s steamer to the town of "W ashington, and that *it was to he Tea-dywhm corn was done”*The contract was made in the month of March. It was proved that, in June, that is, before the cultivation of the then growing crop was finished, the plaintiff called for the timber, but it was not ready. It was further proved, that about the 1st of July, as soon as the growing crop was *laid T>y,*the raft was ready in the place designated. The defendant contended that the meaning of the contract was, that the raft was to be delivered and taken, when the planting of corn was finished. The plaintiff, on the other hand, insisted that the true meaning of the bargain was, that it was to be delivered and received as soon as the working of the crop was done.

His Honor left the sense of the contract to the jury, upon the words and other evidence, as a *question of fact,*and instructed them, if they found the plaintiff had the raft ready, at the time and place he contracted to have it ready, and gave notice to the defendant, who refused, or neglected, to take it, plaintiff would be entitled to recover damages. If plaintiff had not complied with the terms of his contract, i. e., if the *363raft was not ready in time, according to the proper interpretation of the agreement, the plaintiff would not be entitled. The defendant excepted to this charge.

Yerdict for the plaintiff. Judgment and appeal by defendant.

*Donnell,*for plaintiff.

*Rodman*and *Sparrow,*for the defendant.

Nash, C. J.

It is certainly true, that the construction of a contract, whether verbal or written, is a matter of law, to be decided by the Court. Where, however, technical, or unusual words, are used, and their meaning is to be gathered from experts, or persons acquainted with the particular art to which these words refer, or from authoritive definitions, as there may be conflicting evidence, it may present a question for the jury. 2 Parsons on Contracts, 5. But where a contract presents such a case as may require the aid of a jury, the duty of the jury is to ascertain the meaning of the terms used, but it is still the duty of the Court to decide the meaning of the contract, *Hutchison*v. *Banker,*5 Mee. and Wells. Rep. 535. And if a contract is so worded that no definite meaning can be attached to it, it is the duty of the Court so to instruct the jury. The Court is no more at liberty to guess what was the meaning of the parties, than is the jury. In this case, the jury ought to have been instructed, that the contract is so obscurely worded that it Could not form the basis of judicial action. It is /utterly impossible, from the terms., used, to say when the lumber was to be delivered. The word “done” has no'specific meaning, except in cookery. Bread is said to be done, and meat, done, when they are sufficiently cooked for use as food. But when is corn done? The lumber was to be delivered “when corn was done.” “ Done ” is not a word of art or trade, and requires no expert to tell us its meaning. The Court left the sense of the contract to the jury upon the words, and other evidence,: as a matter of fact. We have seen that, in a proper case for a *364jury, they pass only upon the meaning, or sense of the words used, the duty of expounding the contract still being the duty of the Court. But the jury were no more competent to put a construction upon the word “done,” in the connection in which it stands, than the Court was. Used as it is in this contract, it is senseless, and not susceptible of explanation. We may guess at its meaning, but neither a Court or jury are permitted to decide controversies by guessing, and no man can guess, to his own satisfaction, what the word here means.

Pee Cueiam. Judgment reversed, and a *venwe de novo.*