
    D’Aquin et al. v. Barbour.
    Parol evidence is admissible to show the nature and extent • of premises leased by an act sous seingpivé> when, from the indefinite language of the written instrument, it is necessary, to ascertain the intention of the parties.
    Where the intention of the parties is doubtful, the manner in which a contract has been executed by one with the assent of the other, will determine the construction to he put upon it.
    Antecedent conversations respecting a contract which the parties subsequently embody in a written instrument, are inadmissible, where fraud is not charged.
    
      from the Second District Court of New Orleans, Canon, J. ■
    
      Wolfe and Singleton, for the plaintilfs.
    
      T. H. Howard, Larue and Ross, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

On the 28th October, 1848, a lease of certain premises, for a term of five year's, was made by the defendant to the plaintiffs, who carried on the business of bakers ; and the plaintiffs gave sixty notes for the monthly rent. On the 21st of March, 1849, the plaintiffs instituted this suit, claiming the dissolution of the lease with damages, on the ground that “the defendant has failed to deliver to the plaintiffs all the buildings by him leased to the plaintiffs, and indispensable for them to cany on their said trade. That the part of said buildings, [withheld] consists in a store adjoining the entrance of said establishment on Levée street, which, according to said lease, and in conformity to his promises, the said Barbour was bound to deliver to the petitioners.”

Before considering the terms and effoct of the lease, it is properito notice the nature of the property of which the defendant was owner when the lease was made. It was a lot of ground having a front on New Levée street, and running back to Commerce street. Fronting on New Levée, was a brick building occupying the entire width, and three stories in height, and across the entire front, between the second and third stories, was a sign, “Union Bakery.” The lower story, in front, was divided into nearly equal portions, by a partition. One portion, having a depth of about 32 feet, was arranged and occupied as a clothier’s shop. It was rented in December 1847. foroneyear, by Barbour to Mayers, and this lease was renewed between them, in December, 1848. Mayers has been in possession during the whole period, carrying on his business of a clothier in this apartment. The other portion had been used since the erection of the building by Barbour as a baker’s shop, having a like depth of thirty two feet. The entire width back of the baker’s and clothier’s shop’s was used by Barbour for storing purposes, in his business of a baker. Back of this, and occupying also the entire width was a bakery, and still further in the rear were arrangements for horses and drays, used in his business.

The lease to the plaintiffs is in writing, and contains the following expressions and covenants: “ The said lessor lets and hires to the said lessees, for the period of five years, commencing on the 1st November, 1848, the premises now and heretofore occupied by him as the Union Bakery, situated on New Levée street, and extending through to Commerce street; and further, the lessor lets and hires as aforesaid, and as a portion of said bakery, eight certain negroes, and certain other property, consisting of the steam engine, biscuit machine, troughs, breadboxes, cloths, and the fixtures on the premises used in carrying on the business of saidbakeiy, the whole of whichare particularly enumerated and described in the inventory annexed, marked A., and accepted by the parties to this contract of lease as a portion thereof.” This inventory contains the names and ages of the slaves, who are ranged under two classes with reference to their different values and rates of hire as specified in the lease; also an enumeration of the machinery, fixtures, and apparatus, of a baker’s establishment. It is silent as to the apartment occupiedas aclothier’s shop. The lease then contains, amongothes clauses, the following: 1st. “ The said lessees shall have the use and control of the said bakery and property, during the term of five years aforesaid, &c. 4th. The said lessor shall, according to law, keep that portion of the buildings in which said premises are contained in good tenable [Sic in lease] condition as the same now are during the period of said lease. 5th. The said lessor binds himself to sell to the said lessees, at the expiration of the second year of the period of said lease, liispremises and property, at 98 New Levée embracing that described and enumerated in the said inventory, for the sum in cash of $30,000.” In the statement ofthe obligations of the lessees, we find the following : 1st. “The said lessees take the said bakery and property embraced in said inventory, in the good order and condition in which they now are, and engage, during the period of said lease, to keep the same in the like good order, &c. 2d. The said lessees shall incur all risk and expense resulting from the sickness or running away ofthe negroes, &c. 4th. And the said lessees bind themselvos to pay to the said lessor the sum of $4000 per annum, for the said bakery and property aforesaid,” &c. And it is provided and agreed that if the said lessees should, at the expiration of the second year of the period of said lease, neglect to pay to said lessor the sum of $30,000 as aforesaid in cash, for the premises aforesaid of 98 New Levée, and property embraced in said inventory as vendees of said lessor and owner, then and from the time of said sale and payment this instrument of lease shall be null and void, and the said lessor shall deliver to said lessees all of the said promissory notes given for the said rent, &c.

We have no hesitation in saying that, parol evidence was properly received by the court below, for the purpose of showing the nature and distribution of tho property which forms,the subjectof the controversy. The property was described in the introductory clause of the lease, as the premises now and heretofore occupied by Barbour, as the “Union Bakery,” situated on New Levée street, and extending through to Commerce street; and for the purpose of ascertaining the nature of the subject, parol evidence to show what premises were then, and had been theretofore, occupied as the Union Bakery, was proper and even necessary. The intention of the parties was to be ascertained, and that intention could not be reached without an explanation of the situation and nature of the property. See Greenleaf on Evidence, § 286, and the cases there cited. When that necessary explanation is brought into juxtaposition with the language ofthe instrument, both in the introductory clause and in those which follow it, it is difficult to resist the conviction that, the bakery and its appurtenances, as occupied by Barbour, was the objectof the lease ; and, that the apartment then, and theretofore occupied as a clothing store by another person, and which was notnecessaiy for the business ofthe plaintiff, did not enter into their contemplation. It must be observed that the lot of land, eo nomine, is not leased. There is no sweeping expression in the leasing clauses, that would bring the entire premises under the lease. “The Bakery” is the repeatedly recurring expression. The fourth clause, in which the lessor binds himself only to keep in good order that portion of the buildings in which said premises are contained, appears to us quite repugnant to the' construction claimed by the plaintiffs.

It is not to be supposed that, in making so important a contract, and in inserting the description “ the premises now and heretofore occupied by him (Barbour) as the Union Bakery,” the plaintiffs had not first carefully inspected the property which they proposed to lease. Its arrangement was before their eyes, and they saw an establishment occupied by another person and wholly disconnected with the business which Barbour had prosecuted, and in which they were about to succeed him. It is extraordinary, if they expected to get the clothier’s shop under the lease, that they should nothave expressedit in the written agreement.

We believe that in the stipulation for sale, the parties did intend to cover the entire property; but the language they use in those clauses which point to a sale, is certainly broader than is found in the stipulations of lease.

The case? of the defendant is much strengthened by resorting to the principiewhich is embodied in the 1951st article of the Code. “ When the intent of the par-ties is- doubtful, the construction put upon it by the manner in which it has been1 executed by both, or by one, with the express or implied consent of the-other, furnishes a rule for its interpretation.” Now here the plaintiffs went into-possession of the bakery and the rest of the premises, but they did not ask Mayers to go out; they did not ask him to pay them the rent, nor give him any notice-that he was to consider himself their tenant; and, without any obj ection whatever, so far- as the testimony informs us, they seem to have contented themselves-with the residue of the premises, and to have' paid, as' they fell due, the first four notes for rent, to Barbour.

Parol testimony was introduced, respecting the conversations of the parties-while negotiating respecting the lease, for the purpose of showing that it was-understood that the plaintiffs were to have the rent of the clothier’s shop. We' think these antecedent conversations respecting a contract which the parties have embodied in a written instrument, were inadmissible, there being no fraud-in the confection of that instrument, or otherwise alleged or proved.

It is, therefore, decreed that, the judgment be reversed, and that there be judgment for the defendant, with costs in both courts.  