
    Charles Emerson vs. Pearson Coggswell & al.
    
    If a contract bo not under seal, tlio authority of one person to contract for others may bo proved by their subsequent recognition.
    Where one party contracts with the other to fix on a proper location and to build a mill, the acceptance of the mill, after it is finished, is a waiver of any objection to the location, or to the timo, or to the manner of building.
    If a Judge do not himself decide a question of law, but leave it to the decision of the jury, and the verdict is right, it will not for that cause be set aside.
    Exceptions from tbe Court of Common Pleas, RedikgtoN J. presiding.
    Tbe action was assumpsit on a written contract to build a mill, purporting to be signed by tbe plaintiff on the one part, and by Coggswell for himself, and for h. Holmes & Co. on the other part. The other defendants, Holmes & Hogins, denied the authority of Coggswell to bind them in the contract. The whole evidence given at the trial appeared in the exceptions, and will he sufficiently understood from the opinion of the Court. The report states, that the Judge instructed the jury, that the letters of Holmes & Hogins, were full and perfect evidence to charge them as parties to the contract ; that they would judge whether the letters from Holmes & Hogins, taken in connexion with Iíogins, proposition for removing the mill, were or were not an acceptance of it; that they would judge whether the term “ general buildiug of tbe mill ” in tbe contract did not include tbe location of it, and all things connected with the job; that if tboy found an acceptance of the mill, they would allow the contract price and interest, deducting a proportionate part of tbe contract price for the defects, if any ; and that in selecting the site for the mill, it might be done by an agent, and that he was not bound at his peril to select the best possible location, but only to conduct as discreet, prudent and judicious men would do in acting for themselves. There were some other instructions in relation to tbe bearing of tbe evidence, tbe whole charge being set down in tbe exceptions. The verdict was for the plaintiff, and the defendants filed exceptions.
    The case was submitted on tlio briefs of Counsel by
    
      Tenney, for tbe defendants, and by Boulelle, for the plaintiff.
    To show that tbe meaning of words, and general construction of writing, arc for the Court, and not to he left to the jury, Ten-
      
      ney cited 1 Stark. Ev. 429; 3 Stark. Ev. 1032, 1033; 16 Johns. R. 14; 4 East, 130. Evidence may be admitted to show the meaning of a term, but not the meaning of a sentence. 7 Cowen, 202; Roles v. McAllister, 3 Fairf. 308. There must be a cause of action when the suit was commenced to maintain it. 1 Caines, 69; 4 Kent, 120. The plaintiff could not delegate the power to select the location for the mill to another, but must do it himself. Stoughton v. Raker, 4 Mass. R. 530; Tippets v. Walker, ib. 597; Emerson v. Prov. II. Man. Co. 12 Mass. R. 237.
    
      Boutelle cited, as to the acceptance of the work and the measure of damages and waiver, Hayden v. Madison, 7 Greenl. 76 ; Gage v. Coombs, ib. 394; Wyer v. Merrill, ib. 342; and Brin-ley v. Tibbets, ib. 70.
   The opinion of the Court was by

Weston C. J.

Coggswell executed the contract avowedly for himself, and for Holmes and company. Who was connected with Holmes other than Coggswell in this business, does not appear from the instrument itself; but it does manifestly appear, from the correspondence, to have been Hogins, and that from his letters to the plaintiff. It not being a contract under seal, the authority of Coggswell to contract for the other two, may be proved by their subsequent recognition. And that is very clearly and fully proved. It appears from the contract and letters', in which each is implicated by his own admission, that they were jointly concerned in procuring the mill in controversy to be built. Hogins, in his letter of June 1, 1835, states that he had the contract in his possession; and aside from the community of purpose and interest, which would affect each with a knowledge of what had been notified to either, it is fairly to be implied from the letters of Holmes, that he had a full understanding of the whole business.

By the contract, the mill was to be built at or near the outlet of Moosehead lake, on the east branch. Whether its actual position was to be determined by the plaintiff or by the defendants, or by both parties in concert, we hold it unnecessary to determine, as after it was built, the defendants made no objection to its location. Hogins states his apprehensions upon some other points, but is silent as to its site. If the location was not satisfactory, they should ; > interposed their objections at an earlier period. They were i ■ iv silent upon this point, but their a/ quiescence in the site, is fairly 'It.duc-ible from their letters.

And they made no complaint, that the mill was not finished within the time limited in the contract, but acknowledged the justness and fairness of the plaintiff’s claim. As to the execution of the work, Holmes, under the date of November 25th, 1835, advises the plaintiff, that there was no necessity for him to send any one to examine it, as “ it is not disputed.” And he adds, that for the same reason, it would be a useless expense to procure an appraisal of the work. He further advises, that he had written to Coggs-well, that their affairs ought to be closed for reasons, which he thought would bring him to a settlement. And Hogins, by his letter to the plaintiff the next month, although he expresses some apprehensions about the sill and the floom, states that it is entirely unnecessary, that the construction of the mill should be examined, as they did not object to that. Goggswell also, by his letter to the plaintiff of December 13th, 1835, expresses his belief, that they will settle soon, and advises the plaintiff to take their notes upon a further extension of credit.

We are of opinion, that the authority of Coggswell to contract for the other defendants, a waiver of any objection in regard to time, an acquiescence in the site, and an acceptance of the mill are fairly to he drawn from the correspondence, implicating all the defendants. As the verdict therefore is right, it is immaterial, whether the Judge did or did not leave to the jury a part of what he should have decided himself.

Exceptions overruled.  