Wirth v. Kahlenberg ( 1900 )

Per Curiam.

We think that the trial justice erred in his construction of the contract made between the parties; even the tesmony of defendant proves the justness of this conclusion, because he testifies that when said contract was made, the excavation for the foundation wall to he erected on the opposite side of the plaintiffs’ lot was completed. Plaintiffs’ testimony was that not only was the excavation made, but the foundation wall was partially built and run down to the depth of ten or eleven feet. At least we think it was the duty of the trial justice to allow the jury to determine as a question of fact what was the real meaning and intention of the contracting parties in making such contract. In view of the uncertain and ambiguous expressions employed therein, we believe that the court should not have interpreted the contract, but should have left that function to the jury and let them determine and define the intention of the parties thereto, looking to- all the surrounding facts, circumstances and pre-existing relations between the parties and in that way determine their intention and meaning in entering into the same.

Present: Fitzsimoks, Ch. J., and Oowlau, J.

Judgment reversed and new trial ordered, with costs to appellants to abide event.