
    *Bowyer v. Martin and Carraway.
    
    October, 1828.
    Written Instrument — Interpretation—Latent Ambiguity — Parol Testimony. — Where there Is a latent ambiguity in a written instrument, it may be explained by parol testimony: or where the terms used in the instrument have not a definite legal signification, the custom of the trade, or the acts of the parties, may be resorted to, for the construction of them. But, where there is no ambiguity, parol evidence, to explain or contradict it, ought not to be heard.
    John Bowyer sued out from the Justices of Greenbrier County, a Writ of Unlawful Detainer against Joseph Martin and Charles Carra way, for the purpose of being restored to the possession of a certain tenement in the said County, containing, by estimation, twenty-four acres of land, including the Muddy Creek Sulphur Springs, commonly called Patterson’s Sulphur Spring Tract. The proceedings were carried on regularly, in conformity with the directions of the Act concerning Forcible Entries and Detainers. 1 Rev. "Code, ch. 115.
    At the trial, the following articles of agreement appear to have been given in evidence: “This article witnesseth, that I, Nancy Patterson, let all my land, including the Sulphur Spring, to Sterling Leve-sey, for the term of twenty-five years. The said Sterling is to make all the necessary buildings for the use of the Sulphur Spring: He is also to put the Spring in as complete order as the nature of the place will admit of, although at his own expense; and the said Nancy, and the said Sterling, are to be equal shares in furnishing all the necessaries for the accommodation of the Springs, such as bedding, provisions of all sorts, and spirits; the sugar camp is to be for the use of the Spring during the partnership, and the said Nancy, and the said Sterling, are to be equal shares in all the profits arising from the use of the said Spring, and farm also. If the said Nancy should think fit to dispose of her part before the partnership dissolves, the said Sterling is to have the refusal; or, should said Sterling think fit to dispose of his part, the said Nancy is to have the refusal; and the said Sterling is to leave all the improvements in repair at *the expiration of the time; and to the true performance of the above, we do each of us bind ourselves, our heirs, &c. in the penal sum of one thousand pounds. Given under our hands and seals, this 21st day of November, 1815.
    “Sterling Levesey, (Seal.)
    “Nancy Patterson, (Seal.)”
    This instrument was assigned on the 19th January, 1821, to John Bowyer, the complainant.
    There is also .opied into the Record, a Deed, bearing date 13th December, 1817, from Nancy Patterson to the Defendants, conveying to them the said parcel of land: and a Deed from Elizabeth Patterson, widow, and the heirs of James Patterson, releasing to the Defendants all their right to the same parcel of land.
    The Defendants filed an exception to the opinion of the Justices, on the trial of the Unlawful Detainer, which states that the Defendants, having proved the acts and declarations of Sterling Levesey, under whom the Plaintiff claims, with the view of showing’ the understanding of the said Levesey, of the true intent and meaning of the contract of 6th November, 1815, between him and Haney Patterson, under whom the Defendants claim, the said writing' upon its face appearing to the Defendant’s Counsel to be ambiguous, moved the Court to instruct the Jury, that such evidence was legal and admissible, but the Court refused to give the instruction, and instructed the Jury, that such evidence was inadmissible, either to contradict, or explain away, the plain intention as manifested by the said contract. The Jury rendered a verdict in favor of the Plaintiff, and the Justices gave Judgment, that he recover the possession and costs, and awarded a Writ of Possession.
    The Judge of the Superior Court of Daw for Greenbrier County, awarded a Super-sedeas to the Judgment of the Justices; and on the trial of the Supersedeas, that Court, being of opinion that the Justices erred in refusing to permit the Defendants to give evidence of the understanding *of the parties as to the original article of partnership or agreement entered into between them, and how they used and occupied the premises, before the assignment to the Plaintiff, Bowyer; and being also of opinion, that from the original articles, the parties were partners, and each had a right to enter on the premises, arid neither had a right to exclude the other: and that therefore, the Plaintiff, Bowyer, could not have any better title under his assignment, and was not entitled to the entire possession of the whole premises, in exclusion of the other parties, reversed the Judgment and awarded a Writ of Restitution to the Defendants, Martin and Carraway, to restore to them the possession of the said tenement.
    To the Judgment of the said Superior Court, a Supersedeas was awarded by the Court of Appeals.
    Chapman Johnson, for the Plaintiff in Error.
    No Counsel for the Defendants in Error.
    
      
      Por monographic note on Interpretation, see end of case.
    
    
      
      Written Instrument — Interpretation—Latent Ambiguity — Parol Testimony. — The principal of explaining a written instrument by parol testimony applies to those cases only where there is some latent ambiguity in the written instrument, or where its terms have not a definite legal signification. Harris v. Carson, 7 Leigh 639, citing the principal case as authority.
      If parties, in making a contract, use words of definite legal signification, they must be understood as using- such words in their definite legal sense. Findley v. Findley, 11 Gratt. 438, citing the principal case.
      It is well settled that when there is no ambiguity in a written contract, paroi evidence is inadmissible to contradict or vary its terms. McGuire v. Wright, 18 W. Va. 513, citing the principal case.
      See principal case also cited in Eakin v. Hawkins, 48 W. Va. 366, 37 S. E. Rep. 625.
      See generally, monographic note on “Contracts” appended to Enders v. The Board of Public works, 1 Gratt. 364; monographic note on "Evidence” appended to Lee v Tapscott, 2 Wash. 276.
    
   October IS. The Court delivered its opinion.

JUDGE CABELE.

It was not competent to the Superior Court, to give any judgment on the merits of the case depending on the title of the parties, since the proceedings presented no such question to the Court. The verdict was a general one, and the only question presented by the Record for the consideration of the Superior Court, was, whether the Court of the Justices improperly refused to give the instruction' that was asked for, or gave an improper instruction.

Where there is a latent ambiguity in a written instrument, it may be explained by parol testimony: or, where the terms used in a written agreement have not a definite *legal signification the custom of the trade, or rh® acts of the parties, may be resorted to, for the construction of them. But, th® agreement in this case, (if that which is copied into the Record be the one referred to in the Bill of Exceptions,) contains no ambiguity whatever, nor is there a word which has not a definite legal signification. It was therefore, right in the Court of the Jns-tices, to refuse the instruction which was asked for, and the instruction which was given, was likewise correct.

The Judgment of the Superior Court is reversed, and that of the Justices affirmed, with a direction to the Superior Court, to award a Writ of Re-restitution, if the Writ of Restitution awarded by that Court has bee executed.

JUDGE} GREEN and the PRESIDENT concurred. 
      
       Absent, Judues coat/tjsb and Cabb.
     