
    Hezekiah Huntington against Alexander Wolcott.
    gent for such persons as shouldchoose W. issued proposals to procure a title to certain lands in Vir-to employ him for that purpose, at 10 cents per acre. He also, applied to JET., and solicited him, as his agent, to aid him in procuring individuals to become purchasers of the lands, on the terms proposed ; and to induce H. to undertake such agency, proposed and agreed to allow him one cent for each acre which lie should agree to take for himself or procure to be taken by others, provided the quantity so to be taken, should amount to 100,000 acres. II, as agent of IV., proposed to C. to become a purchaser of the lands, and communicated to him, the proposals of his principal Afterwards, II. and C. met to negotiate on this subject, when II. informed that the lands were rapidly rising in value, and could not then be procured at 10 cents per acre ; but if C. would agree to give 12| cents per acre, II. would engage to procure the land from II. ,- to which C. gave his assent; and thereupon, II., as the agent of IV., entered into articles of agreement for the purchase of 200,000 acres of the lands, at 12⅜ cents per acre. Afterwards, on the same day, it was agreed between the parties, to vary the terms of the first agreement, and for this purpose II, ill his own behalf, and not os the agent of W., executed an agreement, by which he stipulated, that C. should have the lands mentioned in the first agreement, at 10 cents per acre, on condition that C., when he should become vested with a title, and should have sold the land, should pay to H. one cent per acre, in addition, on 100,000 acres. C. thereupon, in consequence of his contract, with II, associated himself with T., as a partner in such contract; and thereupon, C, and T., immediately, adopted measures to complete a contract with II ., in pursuance of the agreement between II. and C. C. and T. having, afterwards, ascertained, that the representations of II, in relation to the price of the land, he. were incorrect, and that W. had never demanded more than 10 cents per acre for the land, applied directly to IIand contracted with him for the purchase of 200,000 acres of the land, at 10 cents per acre. II was present during the whole of this transaction, and was a subscribing witness of the contract: No mention was made, at this time, of the contract between If. and C. In an action of assumpsit brought by II. against H to recpver the amount of one cent per acre on the lands by him contracted to be sold to C., as agent of W., it was held, to be exclusively within the province of the j ury to determine, from the facts disclosed on the trial, whether the contract ultimately concluded between W., and C. and T, for the sale of the land, was effected by the procurement of II, in pursuance of the agreement between him and W. — Held, also, that neither the admission of T., as a partner in the contract with C’,, nor the variance in the terms of the final contract made with IV., from the stipulations contained in the original agreement between II. and C., oould affect the plaintiff’s right of recover}'.
    
      MOTION for a new trial.
    This was an action of assumpsit. The declaration stated, that in June, 1795, the defendant represented, that he had entered into certain articles of agreement with one Alexander Smyth, for the purchase of about 1,500,000 acres of land, in Virginia, upon certain conditions, to the plaintiff unknown; that in the month of August, 1795, lie offered hitnself as agent for such persons as were desirous of becoming purchasers of such lands, and proposed to procure for them, from the state of Virginia, a title to such lands, at the price of ten cents per acre, for such number of acres as eacli individual should choose to purchase, payable in the manner following, viz. three cents to be advanced on the 6t h of September, then next; one cent more, on the first day of January, 1796 ; a further instalment of three cents, on the first day of January, 1797 ; and the remaining three cents, on the first day of January, 1798, with interest from the first day of January, 1797. It was then stated, that on the 22d of August, 1795, the defendant applied to, and solicited the plaintiff to aid and assist him in the performance of his contract with Smyth, and to undertake to procure individuals to become interested in the purchase of such lands, and to advance to him, the sum of three cents per acre, for such number of acres as they should agree to purchase, and to employ him, as agent, for this purpose, upon the terms before mentioned ; and to induce the plaintiff to aid and assist him in this business, the defendant, on the day last mentioned, offered, and engaged to pay the plaintiff, a sum equal to one cent per acre, for all the lands which the plaintiff would take, either for himself, or procure to be taken by others, of the defendant, on the terms above stated ; provided the quantity of land so taken, or procured to be taken, should amount, in the whole, to 100,000 acres, and at the same time, executed and delivered to the plaintiff a certain writing, for this purpose.
    And it was further stated, that in consideration of the premises, the plaintiff did, at great expence, negotiate with sundry persons, and procure them to enter into contracts with the defendant, for the purchase of such lands, to the amount of more than 200,000 acres, and to advance to Dim the suin of three cents on each acre of land so agreed to he purchased, and also, to secure the subsequent payments, according to the terms before stated : And particularly, that the plaintiff procured one William Coleman to enter into articles of agreement with the defendant, for the purchase of 200,000 acres of the land in Virginia, and that Coleman, with others, by the procurement of the plaintiff, did actually advance to the defendant, the sum of 6,000 dollars, being three cents per acre of the lands so contracted for, and did, also, secure to the defendant’s satisfaction, the payment of the subsequent instal-ments, &c.
    The cause was tried before the Superior Court, on the plea of non assumpsit. The jury found a verdict for the defendant.
    On the trial, it was proved, that Wolcott, the defendant, on the 22d of August, 1795, issued certain proposals, in writing, relating to the purchase and sale of lands in Virginia, bv which, he offered himself, as agent for such persons as might employ him, for that purpose, to procure for them, titles to a certain tract of land in Virginia, containing 1,000,000 acre.?, at the price of ten cents per acre ; three cents to be paid in advance ; one cent on the 1st of January, then nest ; the remaining six cents to be without interest for one year; then three cents to be paid on the 1st of January, 1797 ; ami three cents more, with interest for one year, to be paid on the 1st of January, 1798. But if it should be found, on his arrival at Richmond, that the lands were purchased by any other person, the defendant would, immediately, return the money advanced, without deduction, as he expected to receive his compensation in the proposed price of the land, and was willing, for that consideration, to risk the trouble and expences of the journey, &c.
    It was also proved, that the defendant executed and delivered to the plaintiff, a certain writing or agreement, in the words following, viz. “ Mr. Wolcott engages to allow Mr. Hesekiah Huntington, one cent per acre, out of the ten cents to be paid for the Virginia lands, which Mr. Wolcott is offering to procure for those who will employ him, on all the lands which said Huntington shall either take for himself, or procure to be taken of said Wolcott ; provided the same shall amount, in the whole, to one hundred thousand acres. August 22d, 1795. Test. Alexander Wolcott
    
    And it was proved further, that in pursuance of such agreement, the plaintiff took for himself, about 9,000 acres of the lands ; and procured Hinckley & Co. to become purchasers of 20,000 acres, and one Smith, a purchaser of 5,000 acres, more; and that William Coleman and John Taylor, on the 6th of September, 1795, contracted with the defendant, for the purchase of 200,000 acres.
    As by the agreement of the parties, the plaintiff was to receive no compensation, unless the sales by him procured, should amount to 100,000 acres, the decision of the cause depended on the single question, whether the contract with Coleman and Taylor was made by the procurement of the plaintiff, in such manner as to entitle him to his commission, within the meaning of the agreement ?
    In relation to this point, Coleman testified, that the plaintiff applied to him, and gave him information of Wolcott's proposals, and offered, as agent of Wolcott, to contract with hint for the sale of lands in Virginia, to almost any amount, at ten cents per acre ; that he, thereupon, determined to make a large purchase ; but no specific agreement was made, at that time ; that on the 28th of August, 1795, he again met the plaintiff, for the purpose of completing the contract, when the plaintiff informed him, that the lands were rapidly rising in value and estimation, and could not be procured at the rate of ten cents per acre, but that if he would give twelve and an half cents per acre, he, the plaintiff, would engage to procure them from the defendant, to which proposition he assented ; that thereupon, the plaintiff as the agent of Wol-cott, and himself, entered into a written contract (which was produced on the trial) whereby, among other things, it was stipulated as follows, viz, “Whereas the said Wolcott, in the month of June last past, negotiated, and entered into articles of agreement with Alexander Smyth of the county of Wythe ami commonwealth of Virginia, Esquire, for (lie purchase of ¡ilion'-fifteen hundred thousand acres of land sitúale in the wes-lern part of said commonwealth of Virginia, on (he river Sandy, so called ; and whereas the said Wolcott now offers himself, as agent, to procure for such person or persons as have, or shall employ him, titles to said tract of land, at the price, and on the terms herein stated, vis. twelve and an half cents per acre, lawful money, payable in the manner following, three cents on each acre, to be advanced to said Wolcott, on or before the 6th day of September next, and one cent on the first day of January next, and the remaining eight and an half cents, without interest for one year, from and after said first day of January next, when four cents shall he advanced, and the remaining four and an half cents, on the first day of January, 1798, with interest from the first day of January, 1797 ; and if, on the said Wolcott's arrival at Richmond in Virginia, the said lands are purchased by any other person and cannot be by him obtained, in that case, the money advanced, shall be immediately returned, without deduction, said Wolcott having his compensation included in the said twelve and an half cents,” &c. ‘‘ And whereas, a meeting of the proprietors concerned in said purchase, is to be held on the 4th day of September next, he will enter into articles, on the principles aboye stated,” &c. “ Now, in consideration that the said William doth hereby covenant and agree to advance the sum of 6,000 dollars, being the first advance for 200,000 acres, and to eater into further stipulations with said Wolcott, on said 4th day of September, at the city of Hartford, for the payment of the remaining nine and an half ennfs, on the terms above stated, the said Huntington, on his part, doth hereby covenant and agree with Coleman, that he shall have said lands, or that said Wolcott shall contract with him for the same, on the principles herein stated,” &c. This agreement was executed by Coleman, and Huntington, as the agent of Woleott.
    
    
      Coleman also testified, that afterwards, on the same day, it was agreed between him and the plaintiff, to vary the terms oí the contract last recited, and for this purpose, the plaintiff, in his own behalf, and not as agent for Wolcott, executed and delivered to him a memorandum of an agreement, by which it was stipulated, that the plaintiff would not demand cf him for the land mentioned in the original agreement, more than ten cents per acre ; and that when he, Coliman, should make sale of such lands, after the purchase should have been completed, and the title vested in him, he should pay to the plaintiff one cent more per acre, for 100,000 acres of the lands so contracted for ; the additional cent to be paid to l he plaintiff, for his own use, on the first day of January, 1797.
    
    
      Coliman also testified, that in consequence of making the contract with the plaintiff, he associated with himself one John Taylor, as a partner in the contract, and that they immediately proceeded to Boston, for the purpose of raising funds to enable them to pay the three cents per acre on the ¿00,000 acres, which, by the agreement with the plaintiff, was to he paid in advance ; and that they, Coleman and Taylor, on the Oth day of September, 1795, went to Hartford, lor the purpose of paying the money to Wolcott, and completing (he business, in pursuance of the contracts entered into bo-tween Coleman and the plaintiff; that on his arrival at Hartford, he was informed, that the plaintiff’s representations, as to the price and estimation of the land, were incorrect, and that Wolcott had ever been willing to contract for the sale of lands, for ten cents per acre; that he, the witness, and Taylor, ou the 0th of September, 1795, applied to Wolcott, and contracted with him for the purchase of 200,000 acres of the land, at ten cents per acre, paid him the amount of three cents per acre, in advance, secured the payment of the remaining seven cents per acre, to his satisfaction, and received from him, a covenant to procure them a title to the land •, that the plaintiff was present during the negotiation of this contract, to which he was a subscribing witness ; and that •during this transaction, no mention was made of any of the former agreements between him and the plaintiff.
    Upon this state of the facts, the court instructed the jury, that the plaintiff was not entitled to a recovery, and that their verdict must be in favour of the defendant: Whereupon, the plaintiff moved for a new trial, on the ground of a misdirection ; which motion was reserved for the consideration of the nine Judges.
    
      N. Terry and T. S. Williams, argued in favour of the motion.
    
      Daggelt, contra.
   Mitchell, Ch. J.

This action is brought to recover a compensation for services rendered to the defendant. The declaration states, that Wolcott had offered himself as agent for such persons as would become interested in the purchase of certain Virginia lands, and employ him to effect such purchase, at ten cents per acre. He solicited the plaintiff to undertake to procure individuals to employ Wolcott, as agent, and engaged to pay Huntington one cent per acre on all the lands which he would either take, or procure to be taken, on the terms stated ; provided the same should amount in the whole to 100,000 acres. It -was then stated, that lie did take, or procure to be taken, the necessary number of acres to entitle him to his commission.

It was agreed, and proved, on the trial, that the proposals of Wolcott, and his agreement with the plaintiff, were correctly stated in the declaration ,* and to establish the other facts alleged, the testimony of a witness was introduced, as recited in the motion. The court, after recapitulating the evidence, declared to the jury, that they were unanimously of opinion, “ that the facts did not entitle the plaintiff to a recoverjg and that their verdict must be in favour of the defendant”

This motion is founded on the illegality of this charge. The most material question which arose on the trial, was, whether the contract, by which Wolcott sold to Coleman and Taylor, certain lands, was made by the procurement of the plaintiff, so as to entitle him to his commission of one cent per acre, agreeably to the contract previously entered into by Wolcott ? If any evidence of this fact, was adduced, on the part of the plaintiff', it was within the province of the jury to determine how far it tended to establish the point to be proved.

It has been insisted, that the evidence conduced to prove a contract with Coleman alone, whereas, the contract in question, was made with Coleman and Taylor. A little attention to the testimony, will shew what foundation there may be, for the assertion.

To shew his agency in procuring the contract ultimately made with Wolcott, the plaintiff proved the execution of two agreements, in August, 1795, to which he was a party, and which be contended, (as the second was made on the same day, and immediately after the first, between the same parties, and respecting the same subject matter,) might, and ought to be considered, and regarded, as one entire contract, in which Coleman bound himself to purchase of Wolcott 100,000 acres of land, at ten cents per acre, and 100,000 acres at eleven cents per acre; one cent on each acre of which, was payable to the plaintiff. For although, in Coleman's indenture, he had stipulated to pay twelve and an half cents per acre for the whole tract; yet, by the other writing, executed immediately afterwards, Huntington engaged to demand not more than ten cents per acre, provided Coleman would pay to him, one cent more per acre for one half of the tract ; so that, with respect to the sale of 100,000 acres, which was the amount necessary to be sold, to entitle Huntington to his commission, the contract was finally made agreeably to the terms specified in Wolcott's proposals, and within the scope of the plaintiff’s authority. The other 100,000 acres were to be sold at the same price, by Wolcott, on condition, that Coleman would reward the plaintiff with one cent per acre.

It is apparent from the proof, as stated in the motion, that Huntington first applied to Coleman, and gave him information of Wolcott's proposals to furnish the lands at ten cents per acre, and that in consequence of this information, and a certain agreement entered into between Huntington and Cole man, Coleman immediately sot out for Boston, with a view to raise money wherewith to make the purchase, arid carry the agreement he had made with Huntington, into effect; and having associated with himself John Taylor, they procured the sums necessary to be immediately advanced, and thereupon, repaired to Hartford, where a contract was made with Wolcott, for 200,000 acres of land, at ten cents per acre. Thus, a journey was commenced and completed, a partner was admitted, money was raised, and an interview with Wol-cott took place, all in consequence of the steps taken by Huntington, and, of course, by his procurement.

On the meeting of the defendant with Coleman and Taylor, at Hartford, terms were agreed on, and a contract made for the purchase of 200,000 acres of the land, if it coulu be procured by Wolcott, and at ten cents per acre.

Hence, it appears, there was, at least, some ground for the jury to presume, that the ultimate agreement was cfleeted, by the agency and procurement of Huntington, who, as it appears by the testimony, was present at the execution of the contract, and a subscribing witness thereto.

The admission of a partner with Coleman, could not affect the claim of Huntington. Wolcott must he presumed tobe benefited thereby, as his security was increased. Hut if this would release him from bis engagement to the plaintiff to remunerate him for his trouble and expence, he would have had it in his power to defeat Hunting ton of his right to his commission, by taking additional security, in every possible case of the plaintiff’s procurement; and ¡ cl, avail himself of the plaintiff’s exertions.

For a similar reason, the plaintiff’s, claim ought not to be affected by a variance in the terms of the final contract, from those stipulated with Huntington, since a contrary principle would place it in the power of Wolcott, by slightly altering the concluding contract, to deprive the plaintiff of what he might be justly entitled to, for his services, according to the agreement.

It is immaterial, whether all the instalments have been paid or not, for if it be admitted, that the plaintiff's reward was lo become due only when the price should be paid, according to the construction given by the defendant ; still, other objections being removed, the plaintiff could fairly claim a part of his commission, as soon as any payment was made; that is, he would be entitled to recover such proportion of it, as the money advanced bore to the price of the whole tract of land.

Upon this view of the subject, it cannot he denied that there was some evidence adduced, of the plaintiff’s agency in procuring the sale in question, and of a benefit received by the defendant thereby ; which, according to the fair import of the agreement between them, entitled the plaintiff to a compensation. The weight of this evidence, and the degree in which it tended to establish the fact in dispute between the parties, was peculiarly within the province of the jury to determine.

It is contended, that the plaintiff, in his negotiation with Coleman, was guilty of a fraud, (which is apparent in the testimony recited,) and which would justify a verdict against him. It is difficult to perceive wherein the fraud consisted. It was, surely, optional with him, either to allow or refuse Coleman the opportunity of the speculation. The plaintiff was sent out by Wolcott to procure individuals to make him their agent, to obtain for them Virginia lands, and to engage to pay ten cents per acre, for such quantity as they should agree to take; and it was matter of no moment to Wolcott, who they might be, if they complied with his terms. The plain Í Iff was under no obligation to disclose the lowest price, or terms, on which the land could be procured. Cases of this sort occur daily, in the commercial world, without any imputation of fraud: As, where agents and factors are author-ised to dispose of property at a particular price, and yet, do not hesitate to demand a greater one, if the market will warrant it. But the plaintiff, in this case, was empowered only to hunt for purchasers, and Wolcott was left to make his own bargains. If Coleman was induced to enter into the agreement with the plaintiff, on the 28 th of August, 1795, by any false or fraudulent representation, that agreement might, thereby, be invalidated ; but the defendant could not avoid his contract with Huntington, because he had been guilty of a fraud in a contract or agreement made with a third person, when he, Wotcott, had not been injured thereby. It might as well be pretended, that the same transaction contaminated, and rendered void, every contract to which the plaintiff had, at any period of his life, been a party.

The contract now in question was made in good faith, and claimed to hare been fulfilled on the part of the plaintiff. To avoid the force of this contract, by proving a fraud in another contract, with a different person, would be novel and unprecedented.

1 am of opinion, that a new' trial ought to be granted.

Swift, I5/¡ a i varo, Bai.owj\ and I.voejisoll. Js., concurred in this opinion.

Smith, J.

It seems, that Wolcott issued public proposals, offering himself, as agent, to procure certain Virginia lands, at ten cents per acre, a small sum to be advanced, and the remainder to be paid by certain instalments : And in case of failure, to return the money advanced, and lose his own time and expences. He then makes a contract with Huntington, counting on these proposals, which were then public, and well known to the parties ; in which Wolcott agreed to allow Huntington one cent per acre, out of the ten cents, for all the lands he would either take himself, or procure to be taken, provided it should amount to 100,000 acres.

On the last mentioned contract, the present action is brought; and the question of fact, before the court below,, was, whether Huntington procured Coleman to take a certain quantity of land, within the meaning of the contract. The evidence to establish this point, consisted in certain written contracts, and the testimony of Coleman. This evidence the plaintiff introduced, and there was no opposing testimony. The court were of opinion, that the facts thus disclosed, even allowing all the facts to be fully proved, about which Coleman, the plaintiff’s own witness, testified, did not lay any foundation, in point of law, for a recovery. They, therefore, saw nothing to be left to the jury; but instructed them that their verdict must be for the defendant.

Tins record presents the following questions for consideration.

1. Did Huntington procure Colunan, or Coleman and Taylor, to take the lands in question ? If he did, then,

2. Has the money been so paid, and the land so received, as to entitle the plaintiff to his action ? If the plaintiff has failed, on either of these grounds, then the question arises,

3. Has the court so encroached upon the prerogative of the jury, as to entitle the plaintiff to a new trial ?

These questions will be considered in their order.

First, then, did Huntington procure Coleman, or Coleman and Taylor, to take the lands in question, within the meaning of this contract ? To decide this question intelligibly, we must first determine what the parties meant, by procuring persons to take the lands. Could they mean, that Huntington should be entitled to his premium, whenever he was the remote cause of a contract, without any direct agency ? Suppose Huntington had procured a man to come to Hartford, on other business, who, after he arrived, heard of Wolcott’s proposals, and, immediately, applied to him, and made a contract ; and suppose it should be rendered highly probable, from various circumstances, that if he had not come to Hartford, he would never have heard of Wolcott, or his proposals. In such case, Huntington would have been a remote cause of the contract; but will it be seriously said that he procured it, within the meaning of this contract ? Or, suppose a person in company, should have heard Huntington state to another, Wolcott’s proposals, and without any communication with Huntington, had applied to Wolcott, and made a contract, would this have been a procurement, within the meaning pf the parties ? Or, suppose Huntington had applied to a man, and stated to him fairly Wolcott’s proposals, but, afterwards, under pretence, that the lands were rising, had demanded twelve cents per acre, and by this means, bad broken off the negotiation, and the same man, bad, afterward-, applied in Wolcott, and made a contract, would this lane buen ¡uncir iug a purchaser to lake the lands? it appears tome, m ¡ y clearly, that it would not; although, in ibis case, as in the others, which I have put, Huntington would lie a rc mote cause of the contract. The question, then, recurs, what was their meaning ? To me, it is perfectly obvious, that Huntington was to be entitled lo one cent per acre, on all the land he should either take himself, or agree wit ii othi i~ to take ; or procure others to take, by any agreement, or > i tract of his.

Having settled, what I consider tobe the meaning of the parties to this agreement, I would now enquire, what Huntington has done on this subject, and if it shall turn out, on investigation, that all he has done was void, and, in point of law, a mere nullity, then, I think, 1 may safely conclude, that in law he has done nothing. I would here remark, that the contract was finally closed between Wolcott and Cole man and Taylor, and as to Taylor, there is not a pretence, that Huntington did any thing, to induce him to purchase. What he did to procure Coleman, appears of record. He first slated Wolcotts proposals fairly to Coleman, but no agreement was then made. Fie, afterwards, acting in the character of agent to Wolcott, declared, that he could not sell the lands short of twelve and an half cents per acre ; and a contract was closed on these terms, signed by Huntington, as agent to Wolcott. He, soon after, varied this contract, by giving up the two} and an half cents per acre, which he had contracted for, over and above the ten cents, and took one half cent per acre to himself, in the room of it; and this agreement he did not: sign as agent, but acted for himself.

Here we stop ; for let it be remembered, that this is all which Huntington did, that can be claimed, with the appear-l anee of plausibility, to be a procurement. He, indeed, came to Hartford, afterwards, but it does not appear, that he did any thing there, not even to disclose what he had done, 1 :! ire it became unnecessary to enquire what would be the <..-.uis i! ihe parlies. Besides, Huntington, at a subsequent period, •■'.iiuadicted his first information, by declaring, that the lands ■ ■¡¡aid not be sold as he first said ¡bey could ; and it seems, 'hut Cci'annn never learned the truth on tile subject, till lit; i•■anted it from others, at Harljmd. If, therefore, Huntington In 3 done any thing, which can be called a procurement, wthin the meaning of the parties, it must be found in one, or the other, or both of the agreements I have mentioned. ‘So we find it in the first ? In this, he appears as the agent of ¡I atcoll, and in bis mime, declares, that he cannot sell the lauds short of twelve and an half cents per acre; and in confidence of the truth of this assertion, Coleman makes the contract; when the principal was holding out his public proposals, at Harijcrd, and contracting with every body cNe, at ten cents ; and Huntington, himself, had no other instructions from Wolcott, than to contract at ten cents per arre.

[t does not need a moment’s consideration to see, that the false affirmation which produced this agreement, renders the whole void ; and that it laid Coleman under no obligation whatever. Do we find the after agreement, which varied, and modified the first, any better ? Had Huntington thrown out the two and an half cents per acre, altogether, it might have purged the fraud contained in the first agreement, as to l a lemán; but we find him still, under pretence, that the lands could not be sold at ten cents per acre, retaining a part of it. This contract, then, is as fatally fraudulent, in respect to Coleman, as the former. And it does not place the subject in any fairer point of light, that we discover in it, a design to defraud Wolcott also, for whom the first agreement was made by Huntington, as his agent. If, indeed, it was a valid contract, the principal had a right to the full benefit of it, and any attempt to give up a part of it, on an agreement lo take a smaller sum to himself, must be a gross fraud on the principal. 1 feel perfectly satisfied, therefore, that neither ‘■be agreement as first made, nor after the modification, had my validity in !i.

But further, this species of speculation, in which l lanting ton engaged, was a departure from his agency, and altogether unauthorised by the agreement between him and Woicoll. The proposals which were issued, related merely to an agency. Wolcott expressly disclaims ail idea of becoming purchaser and seller, for himself, but insists, in one event, on the right of returning the money advanced. He is willing, for the ten cents, to risk iiis own time and expences; but means to risk nothing else. In the contract with Hunt hia-to», he gives him a compensation for his trouble, in the one cent per acre, out of the ten cents. He could not mi in therefore, to authorise any attempt to obtain a farther s.un

I may test this subject, by supposing that Coleman, on ru-co veri ng the imposition, had refused to take the land, or comply with the proposals of the agent ; and I ask, could either Ihirdmaton or Woicoll have compelled him to do so .' Or, suppose Wolcott had been informed of the precise manner in which Manlinaton had conducted the business, and had refused to admit Coleman, as a purchaser, would Muntinulnn have been entitled to his compensation ? If he would not. then he is not now; for, surely, Wolcott, by his act, cannot defeat liuntinutons claim to what he is otherwise entitled io.

But it is said, that Colanan and Taylor actually made a contract with Woicoll ; and this I admit ; hut nothing is, however, proved by it, except that they' were willing to lake it, and that not from any thing which had been done by Hunt-inglon. They found that Wolcott was actually contractin'; at ten cents per acre, the terms being different from w hat Huntington represented ; and finding this to ire the case, they, of their own accord, applied to him, and made a contra1

Secondly, has the money been so applied, and the land so received, as to entitle the plaintiff to bis action ? Nothing appears from the declaration, or in the facts proved, on tl.e trial, to shew, that Wolcott had procured the title; or that the lands were not sold, when he arrived at Virginia ; or ¡hat he has received the ten cents per acre, or been entitled to it, from Coleman and Taylor. But the plaintiff insists, that he had performed all he was hound to do, when the contract was made by his procurement, and was then entitled to his premium, whether Wolcotl could procure the land, or not. Whether this is correct, will depend on the construction wo put upon the agreement. I have already remarked, that Wolcott's proposals were known to the parties, when they made the agreement in question ; and they stipulated with an evident view to them. They speak of the ten cents to be paid for the land, and the agreement is, that Huntington is to receive one cent out of the ten cents, to be paid for the land ; but in one event, the ten cents were never to be paid, and the money actually advanced, was to be refunded, and Wolcott was to lose his time and expences in going to Virginia; and in the same event, Í ask, was not Huntington to lose his trouble also ? He cannot receive the one cent out of the ten cents, unless the events happen, which shall entitle Wolcott to receive it. The parties having placed Huntington's right to the one, upon the reception of the ten cents, shows their meaning to be, that he was not to be entitled to this premium on the mere employment of Wolcott, as agent, but on the consummation of that agency, and the happening of those events, which should entitle Wolcott to the ten cents. If a different construction is to be put upon this agreement, then Huntington was entitled to the one cent, for what he took himself, and might have claimed it, the next day, after employing Wolcott, as agent; provided be bad contracted for a quantity large enough ; and Wolcott must have paid it to him, although, it was altogether out of his power to obtain the land. This could not be their meaning. They appear, rather, to have in view, a division of the profits of this agency, and count, therefore, on a completion of the business, and a reception of the whole sum.

I do not mean to be understood to say, that Huntington would not be entitled to his premium, provided Wolcott's right to the ten cents, failed, in consequence of any misconduct, or negligence of his. But if such was the fact, it should have been shewn, and this might have placed the plaintiff’s claim, on a» high •'round, an though ii hail actually been received. I mean only to say, that to entitle the plaintitf to recover, he ought to shew, either that the whole sum was received, or that the failure was owing to the misconduct, or negligence of the defendant.

If I am correct on both, or either of these grounds, there ought to be no new trial granted, unless it is dono to vindicate the rights of the jury.

This brings me to the third enquiry. Has the court so encroached upon the rights of the jury, as to entitle the parly to a new trial in this case ? If I am correct on either ®f the preceding grounds, it is very evident, that substantial justice is done between the parties; and on another trial, the cause must be decided the same way. 11 is difficult for me, therefore, to see what claim the party has to a new trial.

It is within the recollection of every member of this court, that the practice of filing hilts of exceptions, was given up, and motions for new trials substituted in their stead, principally, to give the court a sound discretion on the subject of opening a cause, for farther litigation. I should \ery much doubt, therefore, in this case, whether a new trial ought to be granted ; although it should be thought that the court have gone rather too far, in their instructions to the jury. But I am not yet convinced, that they went too far. Indeed, if I am correct in supposing, that the plaintiff could not recover, without either shewing, that Wolcoit actually received the ten cents, or that he failed, by his own negligence, or misconduct, there was, clearly, nothing to be left lo the jury; for, on this subject, there was not a shadow of evidence, and the whole case turned on a construction of their written agreement: And the other point becomes unimportant, if I am correct in this. If, however, I am incorrect on this point, then the cause would turn upon the question, whether the plaintiff procured Coleman and Taylor to conirael. with Wolcoit, within the meaning of their agreement ? And this is claimed to be a question of fact. It Is rather a mixed question of law and fact. The construction of the writing is matter of law ; when that is ascertained, what remains is mailer of fact. 1 admit, most fully, however, that it was a question for the jury to decide. They were the only forum which could decide it; and they found a verdict accordingly. The court instructed them, how (heir verdict ought to be, taking the facts even as claimed by the plaintiff, appearing by certain written agreements, bv him produced, and by the testimony of his own witness; and, in this, I cannot think they did amiss.

In an action of trover, where the only question is, whether there had been a conversion; and it should be agreed, by tile parties, that there had been a demand and refusal; although, still, the conversion is matter of fact for the jury to find ; yet, I should think it no great encroachment on their prerogatives, for the court to inform them, that their verdict must be for the plaintiff. So again, suppose the plaintiff, in attempting to prove a demand and refusal, by his own witness, proves only a demand, but so far from there being a refusal, the same witness proves, that th^defendant offered to give up the property in question; may not the court instruct the jury, that taking the facts to be true, as sworn to by the plaintiff’s own witness, there must be a verdict for the defendant ? Of course, there is nothing for them to consider.

But it has been said, that at least, the court should have submitted to the jury the credibility of the plaintiff’s witness. They then, on this ground, must have stated to the jury, that if they believed Coleman, the plaintiff’s witness, their-verdict must be for the defendant. And what if they did not believe him ? Then, in that case, their verdict must be the same. Whether the witness was to be believed, therefore, was altogether a useless enquiry.

If, in the opinion of the court, the facts disclosed by Coleman, were sufficient to entitle the plaintiff to a recovery ; then whether he was to be believed, or not, must have been submitted to the jury. But there cannot be a verdict for the plaintiff, on the ground, that his own witness is not to be believed, because, in such case, he is debitóte of proof altogether.

In my judgment, therefore, no new trial ought to be granted. ,

Reeve, Tbumbuol and Eduomd, Js., concurred in the opinion delivered by Smith, J.

New trial advised.  