
    Davis vs. Smith.
    1. What interpretation shall be placed on a written instrument is a matter , for the court to decide, not the jury.
    2. The terms of every written instrument are to be understood in their ordinary and popular sense; unless from the context it appears that the parties to the instrument attached a different meaning. to the terms, or by the usage of trade they have acquired a different meaning. As when a covenant bound the covenantor to put a chartered turnpike road in good order it shall not be understood that the covenantor meant that the terms of the charter should be complied with, as there was no reference made to the charter, but in good order according to the popular acceptation of the words.
    Smith sold to Davis a chartered turnpike road on the route from Nashville to Sparta, for the sum of $8000, and covenanted “ to work out the road and put it in good order ” the ensuing fall after the contract was made. On this covenant Davis ■ instituted suit in the Circuit Court of White county against Smith, and it was tried by Judge Campbell and a jury. The plaintiff offered in evidence the charter which provided that the road should be thirty feet wide except on mountain sides and on hills where it should be sixteen feet wide free from all obstructions, the hills to be cut down and valleys filled up so 'that at no place the rise should be more than two feet to the rod. It appeared that Smith had worked on the road at the time specified and the preponderance of the proof was that the road was put in as good order as it usually had been, but that it would take two thousand dollars worth of labor to put it in the condition required by the charter. Objection was made to the reading the charter to the jury, but the court permitted it to be read subject to exceptions. The defendant proved that at the time the contract was made, Smith said he would give two thousand dollars to get off; that he objected to the words “ good order” in the contract and wished "usual order” substituted, that after the contract was made, Davis was asked if he understood Smith was bound to put the road in the order required by the charter; to which he replied that he thought he could make him put it in that order. This evidence was objected to, but the objection was overruled.
    The judge charged the jury that the terms of the covenant were to be taken in their usual and popular acceptation; that parol testimony was inadmissible to explain the meaning of the words used in the covenant, that the intention of the -parties was to be collected from the terms used in the instrument in connection with the subject matter of the covenant; that the charter of the turnpike not having been referred to in the covenant could not be regarded by the jury as explaining the meaning of the words “good order” in reference to the turnpike, but the words- should be taken in their usual and popular acceptation.
    He also stated to the jury that the testimony introduced to explain the meaning of the parties at the time the contract was made,, or afterwards, should not be regarded for any other purpose than as rebutting the evidence that the charter gave the proper construction and meaning to the covenant; the expressions in the covenant did not mean that the road should be completed in accordance with the requirements of the charter but that it should be put in good order according to the common acceptation of the words.
    There was a verdict and judgment thereupon for the defendant. The plaintiff appealed.
    
      S. Turney, for the plaintiff.
    
      I. S. Brien, for the defendant.
   McKinney, J.

delivered the opinion of the court.

On the trial of this case in the circuit court, his Honor instructed the jury among other things not necessary to be noticed that the expression in the covenant sued on, that the defendant shall work out the road this fall, and put it in good order,” does not mean that the road shall be made and worked out in conformity with the requirements of the charter; but that the road should be put in good order, according to the common acceptation of these words. That the charter of the Turnpike could not be looked to for the meaning or explanation of the language of the covenant it not being referred to in said covenant as containing the meaning of the parties.

Did the court err in the foregoing instructions? It is a well settled principle, that in general, the interpretation, as well as the- construction ■ of a written instrument,, is a matter of law for the court, and not for the jury. 1 Greenleaf on Ev. sec. 277, note 1. And in the interpretation of a written instrument, the duty of the court is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used. 1 Green, on Ev. sec 277, note 1. The terms of every written instrument are to be understood in their plain, ordinary and popular sense, unléss by the known usage of trade or otherwise, they have generally acquired a peculiar sense or technical meaning distinct from the popular sense of the same words, or unless from the context it appears evident that the parties, in the particular instance, intended them to be understood in some other and particular sense. 1 Green, on Ev. sec. 278.

Applying these principles to the cáse under consideration, we think the circuit judge did not err in assuming to interpret the proper meaning of the stipulation in the covenant, that the defendant should put the road in “ good order,” nor did he err in his interpretation of these words. To hold that by the use of the words “ put the road in good order,” it was understood and intended by the parties, that it should, in all respects, be put in the order, and made to conform with the exact requirements of the charter, as is now insisted upon by the plaintiff’s counsel, would be, not only to violate the rule of interpretation above laid down, but likewise to vary and enlarge the terms and obvious meaning of the covenant. The road may have been “ put in good order ” in the sense in which. these words were, at the time, understood by the parties, and as they would be understood by persons generally; and yet it may not have been bridged, or graded, or made of the exact width at all points, indicated in the charter, and indeed, it may have been utterly impracticable to make- it in all respects in literal compliance with the requirements of the charter, and it cannot be supposed that such was the understanding of the parties. It follows, necessarily, from the foregoing view of the case that the court did not err in excluding the charter from the jury. And the effect of the improper admission of the declarations of the parties, at the time of the contract or afterwards, we think was sufficiently obviated by the direction of the court to the jury.

Upon the whole we affirm the judgment.  