#### Van Hagen *against*Van Rensselaer.

There was a special agreement in writing between *R*and *H.*resale 6and exchange of two farms, in which it was stipulated, among other things, that /£. was to be allowed ten dollars per acre of the price of the farm occupied by *H.*as an equivalent for the release of all claims to it by iÜ. The parties, afterward*, indorsed on the contract, an agreement that the price which *R.*was to pay and *H.*was to receive, as the price of his farm, should be forty dollars per acre. Held, that the stipulation indorsed, was not an absolute independent contract in itself, but was a modification, only, of the original contract to which it referred; and both were to be taken together as one instrument, and to be construed according to the intent of the parties, to be coilected.from the whole contract; and there being no ambiguity in the agreement, V>arol evidence was inadmissible to explaiu it. The ^¿•reementendorsed, therefore, was not that *R.*was to pay *H.*absolutely, 40 dollars per acre for hfs farm, bat that price subject to the deductions mentioned in the original agreement.

THIS was an action of assumpsit. The declaration contained counts on a special agreement, and for goods -sold and delivered, and the common money counts. The defen-The cause was dant pleaded *non assumpsit*and payment. *421tried at the *Columbia*circuit, in December, 1 !f 19, before Mr. Justice *Van*Ness. After the evidence was closed, the judge declared his opinion oh the questions raised by the counsel, and the plaintiff tendered a bill of exceptions, The jury found a verdict for the defendant. The cause was submitted to the Court, without argument, on the record and bill of exceptions.

All the material facts are stated in the opinion of the Court.

Platt, J.

delivered the opinion of the Court. This is an action on a special written agreement for the sale and exchange of two parcels of land, dated the 18th of *November,*1814. The contract is very complicated in its provisions ; but so far as is material to the questions now before us, I consider the substance and legal effect of the instrument to be as follows : *Van Rensselaer*contracted to sell and convey to *Van Hagen*a tract of land, called the *Green River*farm, for 6,000 dollars. *Van Hagen*then occupied a farm at *Kinderhook,*which *Van Rensselaer*claimed ; and the title was in dispute between them. It was agreed, that the farm so possessed by *Van Hagen,*should be sold on an execution in favour of one *Borland,*on the 1st day of *April*then next; if it could not, in the mean time, be sold at private sale; the defendant *(Van Rensselaer,)*engaging to bid at least 30 dollars per acre, if sold at sheriff’s sale. And in order that there might be no sacrifice on account of the disputed title, it was stipulated, that *Van Rensselaer*should unite in the conveyance, so as to vest a clear title in the purchaser ; and to complete the compromise, it was further agreed, that upon the sale of the farm, in cither mode, 10 dollars per acre of the price of the disputed farm, should be paid or accounted for by *Van Hagen*to *Van Rensselaer,*as an equivalent for the release of *Van Rensselaer's*claim. *Van Rensselaer*engaged to pay off the execution of *Borland*against *Van Hagen;*and then an account was to be stated between these parties, as follows, viz.: *Van Hagen*to be made debtor, 1. For the *Green River*farm, 6,000 dollars ; 2. Amount to be paid by *Van Rensselaer,*on *Borland’s*execution, and other incumbrances ; 3. Ten dollars per acre, *422on the sale of *Van Hagen’s*farm; and he was to.be credit-» ed for the whole amount of the price of his farm as sold under the agreement; and each party was to be responsible for the eventual balance of the account.

On the 21st of *December,*1814, the parties made, and subscribed the following stipulation, on the back of the original agreement, to wit í “ We agree, that the price to be paid by the within named, *Jacob, (Kan*Rensselaer,) and to be received by the within named *John, (Van Hagen,)*as the price of his farm, shall be 40 dollars per acre.” The farm of *Van Hagen,*containing 346 and 3-4 acres was, accordingly, conveyed to *Van Rensselaer.*The commutation for *VanRensselear’s*claim, at 10 dollars per acre, amounted to 3,46f dollars and 50 cents. The object of this suit is to recover a balance claimed by the plaintiff, under that special agreement. At the trial, a question arose, whether the plaintiff had a right to claim 40 dollars, per acre, for his farm, over and above all allowance for the commutation for the defendant’s claim to the land ; or whether 10 dollars per acre, in favour of the defendant, was to be deducted from the price of 40 dollars per acre ? The judge expressed an opinion in favour of the defendant, upon the .legal construction of the original contract, and the memorandum endorsed thereon; but for greater caution, and in order to present more fully every fact relating to the merits of the case, which could, in any view, be material, he admitted parol evidence to explain the intention of the parties, in regard to the.equivocal terms of the endorsement, and he put it to the jury to find specially, as to that fact.

To this opinion of the judge, and to the admission of such evidence, the plaintiff’s counsel excepted ; and we are now to revise the proceedings *üínisi prius.*

It cannot, I think, be doubted, that the stipulation endorsed was not an entire contract, in itself, but must be considered as a modification merely of the original agreement to which it refers. Both together form one contract, in the same sense as if they had been incorporated-in the same instrument. That construction'is to prevail which is consonant to the general intent, as it appears in the whole context. If the endorsement be construed lite*423rally, *per se,*it would imply an absolute, and unqualified sale of the farm by the plaintiff to the defendant, for which the purchaser was to pay a price in cash, at the rate of 40 dollars per acre. But, in this case, it would be very absurd to suppose, that such was the intention of the parties. The price of the farm was to be carried to the credit of *Van Hagen,*on account. “ *Verba generaba restringun-tura d aptiludinem*rei.” The parties, in the endorsement, spoke in reference to the terms of the original agreement; and when they said *“ the price to be paid,’’*and “ *to be received,’’*shall be 40 dollars per acre, I understand them to mean, that instead of waiting till the 1st of *April*ensuing, to ascertain the price of *Van Hagen’s*farm, by a sheriff’s sale, or by a private sale to a stranger, as contemplated and provided for in the original agreement, the parties chose to fix the price, by mutual consent, at 40 dollars, per acre ; and *Van Hagen,*accordingly, conveyed his farm to *Van Rensselaer*at that pries, subject to all the provisions of the original agreement, as to the exchange of farms, and the deduction of 10 dollars, per acre, for the claim of *Van Rens-selaer,*leaving the account between them to be settled upon the terms first agreed on. The price of 40 dollars, per acre, “ tobe paid” by *Van Rensselaer,*and “ to be received” by *Van Hagen,*means, that *Van Hagen*was to be *credited*with that sum, as the price of his farm, in the account, as proposed to be stated, in the original agreement.

In the words of a learned author on the law of contracts, *(Powell)*“ the matter in hand is always presumed to be in the mind and thoughts of the speaker, though his words seem to admit a larger sense : and therefore the generality of the words used, shall be restrained by the particular occasion.” Where *A.*had a judgment against *B.,*and *B.*gave a legacy to *A.*and died ; *A.*on the receipt of the legacy, gave the executor of *B.*a release in these words, “ I acknowledge to haye received of C. five pounds, left me as a legacy by *B.:*and I do release to him all demands which I, against him, as executor of *B.,*can have, for any matter whatsoever ;” it was adjudged that the general words “ all demands whatsoever,” should be restrained, so as to apply to *424the legacy only, and not to include the judgment. *(Knight*v. Cole, *Equ. Cas.*170)

Upon a careful examination of the contract and endorse'ment, 1 am of opinion, that the judge, at the circuit, ruled correctly, in . regard to the legal construction of the whole agreement. In my judgment, there is no such ambiguity in this contract as will justify the admission of parol evidence to explain the intent. The case presents a prolix and difficult question as to the legal sense of the two parts of the written contract; and it is á question of construction, which belongs exclusively to the province of the Court. The finding of the jury, however, upon the question of fact spe--cially submitted to them, is, in this case, immaterial and harmless. Their, verdict (for the defendant) must have been the same, if they had been guided solely by the opinion of the judge on tlie question of law, independent of the parol evidence which was objected to.

I am, therefore, of opinion that the defendant is entitled to judgment, and that is the opinion of the Court.

Judgment for the defendant.,