CASE 17 — PETITION ORDINARY

JUNE 25.

#### White vs. Booker.

APPEAL PROM THE SHELBY CIRCUIT COURT.

1. The intention of the parties, to be gathered from the entire instrument — not the meaning or effect of a particular word — must always_determine the question of construction of the contract.

2. After reciting that B. had bought of W. 100 hogs, of a certain description, to be delivered at the time, place and price specified, the agreement stipulates that “B. *feeds*and *returns*him, W.-, 250 hogs, no hog to weigh less than 220 pounds, and each and every hog *to' be well fatted,*and no sow with pig, and to average 300 pounds gross.” *Held,*That hogs fed by others than himself, of the requisite description, might be furnished by B. in fulfillment of his contract."

In this'action, brought by Booker against White, to recover damages for the refusal of the latter to receive and pay for the 25Ü hogs mentioned in the contract, when tendered, the defense set up was, in substance, that said hogs were all to be fed solely by the plaintiff, and none other, and that the larger portion of the hogs tendered by plaintiff were not of his feeding, but were purchased, already fatted, of other persons; and that plaintiff did not tender him 250 hogs of his own feeding, &c.

A demurrer was sustained to the answer, verdict and judgment for the plaintiff for $1,700 damages, and the defendant appeals.

T. B. & J. B. Cochran, for appellant,

cited 5 *B. Mon.,*501.

J. M. & W. C. Bullock, for appellee,

cited 1 *B. Mon., 7.*

CHIEE JUSTICE DUVAiL

deliveeed the opinion op the court:

The contract in the case of *Shultz vs. Johnson’s adm'r.,*(5 *B. Mon., 497,)*was held tobe a personal contract, which did not survive to the administrator, on the ground that such was the intention of the parties, clearly manifested by the terms of the writing. It was said that hemp, which was the subject of that contract, was an important and valuable staple, and the court had a right “to presume that its value greatly depends upon *268the attention, experience and skill in raising and preparing it for the use of the manufacturer.

But-here neither the terms of the contract, nor its subject matter, nor the situation of the parties, authorize any such construction. After reciting that Booker had bought of White 100 hogs, of a certain description, to be delivered at the time, place and price specified, the agreement stipulates that “Booker *feeds*and *returns*him, White, 250 hogs, no hog to weigh less than 220 pounds, and each and every hog *to be well fatted,*and no sow with pig, and to average 300 pounds gross.”

Now, if Booker had ready for delivery, at the time and place specified, the 250 hogs, coming up in all respects to the description contained in the writing, it would hardly be rational to assume that, whether they were fed by Booker or by another, was or could be, a matter of the slightest concern to the purchaser. This court, at least, could not presume that the market value, of250 hogs, averaging 300 pounds, and well fatted, would greatly or at all depend on “the attention, experience and skill” which may have been displayed in fattening them. We think it clear, therefore, that the recital or stipulation that “Booker *feeds,''*was immaterial, and formed no part of the essence or substance of the agreement in the estimation of the parties themselves. Moreover, the literal construction contended for would render the performance of the contract by Booker impossible, because he not only agreed to *feed*but to *return*to White 250 hogs. But he had received from White only 100 hogs, and could, therefore, only have *returned*that number, according to the strict literal meaning of the word. The intention of the parties, to be gathered from the entire instrument, not the meaning or effect of a particular word, must always determine the question of construction.

The judgment is affirmed.