
    JACOB STAPENHORST, Plaintiff and Respondent, v. JULIUS WOLFF, Defendant and Appellant.
    I. Instruments, Written. Construction of.
    1. What facts mo/y be consider ed in construing a clause the meaning of which is obscure.
    
    
      a. Acts of the parties leading to, or done at the time of the execution of the agreement, or done in reference thereto, and those facts in view of the existence of which the agreement was entered into, may be considered.
    2. Application of the principle.
    
    
      a. Upon the dissolution of a partnership existing between A and B., they entered into a written agreement, whereby A. sold to B. the factory of the firm, with all articles therein both movable and otherwise, together with a wagon belonging to the firm, and B. agreed to pay therefor §2,500 in ninety days, and which agreement contained the following separate clause : “B. assumes to collect all debts due said firm, and therewith to pay all debts of said firm, and to pay the balance to A. in thirty days.” For the purpose of determining whether B. by this clause undertook absolutely to pay the difference between the debts due by and to the firm, or only the difference between the debts due by, and the amount of the collections from the debts due to, the firm; it is admissible to consider the following matters:
    
      a. That at the time of the execution of the agreement, the parties had before them schedules showing the amount of the debts due by and owing to the firm, and that there was §2,433.46 in favor of the firm.
    
      b. That the action commenced by A. was commenced by a summons for relief, and the relief prayed for by the complaint was in part that B. might be decreed to pay over the balance of the debts in his hands collected by him, or which could have been
    - with due diligence collected by him after deducting the debts
    | • due by the firm.
    
      Held, that considering these facts the clause in question must be construed as only requiring B. to pay the difference between the sum total of the debts due by the firm and the sum total .of the collections made, and which could with proper diligence have been made by him from the debts owing to the firm.
    Before Monell, Curtis, and Sedgwick, J.J.
    
      Decided June 29, 1872.
    Appeal from judgment entered on a referee’s report.
    The parties were copartners in business. On the 12th of July, 1869, the plaintiff sold his interest in the business to the defendant. The agreement of sale provides that the defendant assumes all outstanding claims of the firm of Jacob Stapenhorst & Co. for collection; also to pay with the same all that they owe, and agrees to pay the remaining balance to Jacob Stapenhorst forthwith within thirty days.
    The plaintiff claims that at the time of the sale, the debts due by the firm amounted to $1,610.99, and that the debts due and owing to the firm amounted to $4,044.05, and seeks to recover under this provision of the agreement the sum of $2,433.46, being the difference between the two accounts.
    The defendant claimed that that was not the true meaning of the instrument. That it does not show, by any proper construction that may be given it, that, thereby Wolff, the defendant, agreed to pay Stapenhorst, the plaintiff, the difference between the debts due to, and the debts owing by, the firm, on the 12th of July, 1868, and which differences amounted to $2,433.46, but that on the contrary the real meaning and interpretation of it, was simply to constitute the defendant the agent of the firm, and of Stapenhorst, to collect the debts due to it, and to pay those owing by it, and entitling Stapenhorst to any balance which, on an accounting, would be shown to be in the defendant’s hands, after paying all the debts of the firm out of his collection of debts due to the firm. The action was commenced by a summons for relief. The relief demanded by the complaint was in part “that defendant may be ‘ ‘ decreed and compelled to pay over the balance of the “debts in his hands, collected by him, or which could “have been with due diligence collected by him, and “ which amount, after the deduction of said debts due “by the firm, to the sum of $2,433.46, and that he be “ decreed to pay said amount to the plaintiff, with interest thereon from August 12, 1869, the time when the “ same should have been paid according to said agree“ment, besides the costs.”
    Upon the trial, the referee held, that under the agreement the plaintiff was entitled to recover the difference, $2,433.46, between the amount of debts owing by the firm on the 12th of July, 1869, and the amount due to it, it having been proved that on that day the firm owed $1,610.59, and that there was due to it the sum of $4,044.05. Upon this evidence the plaintiff rested. The defendant moved to dismiss the complaint on the ground of failure of proof. This motion was denied, and an exception taken.
    The appellant offered no evidence, and appeals from the judgment.
    
      Robert H. Strahan, for appellant.
    
      G. Storms Carpenter, for respondent.
   By the Court.—Curtis, J.

The contract contain- • ing the provision in question is drawn in the German language, and this portion of it is rather obscure in the expression of its meaning.

The summons is for relief, and taken in connection with the prayer of the complaint, which is partly for equitable relief, it would seem as if the plaintiff was at some loss as to what construction he should place on this clause of the agreement of July 12, 1868, when he commenced this action in June, 1870. The evidence shows that previous to the execution of this agreement schedules were made out by the parties, showing the amount of the debts due and owing by the firm, and that the difference between them was this sum of $2,433.46 in favor of the firm.

If it had been the intention of the parties that the defendant should pay this sum to the plaintiff, it would have been the most simple and natural course to have had it so expressed in the instrument, and as becoming due within thirty days.

Upon reading this provision as it exists in the instrument, and as the parties seem to have themselves at first viewed it, and looking at the surrounding circumstances, it appears to me, that it really means nothing more than that the defendant, Wolff, should collect the debts of the firm, pay its obligations, and then pay over whatever surplus might remain in his hands to the plaintiff, Stapenhorst. Any other interpretation of it is forced and improbable, and not, as it seems to me, warranted by the language employed.

I think the construction given to it by the referee is incorrect, and that there should be a reversal of the judgment, with a new trial, and with costs to the defendant to abide the event of the suit. Order of reference also vacated.  