
    Frank McClanathan et al., Resp’ts, v. William Friedel, et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 1895.)
    
    1. Contract—Construction.
    If the language of a writing is ambiguous or indefinite, the practical interpretation of it by both parties is a consideration of importance.
    2. Same.
    Under a contract guaranteeing plaintiff to average a certain sum'for running a machine seven days or one week from July 1, to September, 1893, to be paid every Monday of every week, it is a question for a jury whether it was the intention of the parties that the machine should he run on Sundays.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.
    
      Wm. Nottingham and Costello & Welch, for app’lts; Waters, McLennan & Waters, for resp’ts.
   Merwin, J.

One of the defenses set up by the defendants is that the consideration of the weekly payment to be made or guarantied by the defendants was in part for services to be performed on Sunday, and that the agreement in substance required the service to be so performed; and that, therefore, the contract under which plaintiffs claim is illegal and void. It is not disputed that this result follows provided the agreement is to be construed as requiring the machine to be run on Sunday. It was held by the trial court, as matter of law, that the agreement should not be so construed, and that the contract, so far as this question was concerned, was a legal one. The appellants claim that this ruling was erroneous. The contract is dated June 25, 1893, and that day was Sunday. It is, however, shown that it was in fact executed on Monday, June 26. The defendants had a pavilion and a saloon or restaurant near Salina pier, on Onondaga lake, and it was understood by the parties that the plaintiffs’ machine was to be placed near the defendants’ place of business, and it was so placed. It was run by steam power,—an engine; and there was an organ connected with it. The machine commenced to run, according to the evidence on the part of plaintiffs, on Sunday, the 2d of July, and continued to run every day, including Sundays, up to about the 18th July, when practically it stopped, by reason of the failure of the defendants to furnish coal for the engine. Whether the plaintiffs were without fault, and were ready to perform on their part for the time covered by the claim in this action, were questions litigated at the trial, and found by the jury in favor of the plaintiffs. On the 5th July the defendants paid the plaintiffs $150 for the first week’s payment. The defendants assisted in running the machine to the extent of selling tickets. By the contract, it was, in effect, agreed that for the work of every seven days, constituting a week, from a certain time to a certain time, the plaintiffs should be guarantied and receive a certain compensation. This was to be paid weekly, and therefore it must necessarily have been the intention that every day in the week should be occupied. It was seven days’ work in a week the earnings of which were guarantied at a certain amount, and to be paid for weekly. In this view the contract could not, consistent with the intent of the parties, be construed to give an option to plaintiffs to work on Sunday or not, as they chose. The number of days that the machine ran was a material element in the guaranty, and effect should be given to the words “seven days.” If the language of a writing is ambiguous or indefinite, the practical interpretation of it by both parties is a consideration of importance. Woolsey v. Funke, 121 N. Y. 92; 30 St. Rep. 768; Dodge v. Zimmer, 110 N. Y. 48; 16 St. Rep. 657. As said in Insurance Co. v. Dutcher, 95 U. S. 273, “There is no surer way to find out what parties meant than to see what they have done.” In the present case it is undisputed that the machine was in fact run upon Sundays during the time it was run under the contract We are of the opinion that the trial court erred in holding, as matter of law, that, so far as this question was concerned, the contract was legal. The judgment must therefore be reversed.

Judgment and order reversed on the exceptions, and a new trial ordered; costs to abide the event.

All concur.  