The opinion of the Court was by
Shepley J.To prove his accouut the plaintiff was allowed to introduce an order addressed to him and signed by the defendant, requesting him to oblige one Marhar by furnishing him with provisions, if he should be in want. The objection to it is, that it was irrelevant, having no tendency to prove the plaintiff’s claim. If it could properly have any influence, it was legal testimony; and that it could be legally used for certain purposes will more fully appear, when the instructions to the jury are under consideration.
*368Another objection is to the admission of an account, containing a claim for boarding the men of Marhar, to whom by the order he was authorized to furnish provisions, and also a claim for a small quantity of lumber, and having upon its margin figures relating to .the lumber, made by one who had been the defendant’s clerk, and in the handwriting of the defendant the words “ Levi Small per Marhar.” The ground upon which it was admitted was, that the design and object of making these memorandums in the margin of the account was proper for the consideration of the jury. They proved, that the paper had been in the possession of the defendant and the subject of consideration. Small was proved to have been the person, who received the order from the defendant, who by marking his and Marhar’s names upon the paper containing the charge for boarding, authorized an inquiry before the jury as to the purpose for which it was done and what connexion might be inferred from it between the order and the manner of executing it, by boarding the men instead of a more literal execution by furnishing the provisions for their subsistence. And even this would seem to be sufficient reason for precluding the Court from withholding either of the papers from the consideration of the jury.
It is insisted, that the memorandum of the clerk was not evidence, because the declarations or admissions of an agent do not bind his principal. But this memorandum was not of that character, and if operative at all, it was as an act of an authorized agent in the transaction of the business entrusted to him, and such acts are the acts of the principal and may be proved in like manner. And by the instructions the jury w'ere not authorized to find the items of account, to which the clerk’s memorandum applied, for the plaintiff, unless they found it to have been made while he was acting as defendant’s clerk, and with a design to admit them as proper charges, and that it was known to the defendant to have been so made, when he made the memorandum on the same paper.
The legal construction of the order was undoubtedly to be determined by the Court, and the construction, which was given to it, is not questioned; but complaint is made, that while the jury were informed, that it did not in terms authorize the plaintiff to board the men, they might consider the circumstances under which it was given ; the condition of the men in the wilderness, without cooking utensils, and that if they believed that it was the intention *369of the defendant to give effectual support to Marhar’s men, and that the only mode in which it could be afforded was by boarding them, or that the defendant, knowing these circumstances, made the memorandum on the paper with a design to admit, that the boarding was under the authority of the order given to Small, they might find for the plaintiff those items of the account.
That it was competent for the jury to find, that the memorandum was made by the defendant with a full knowledge of all the facts and with a design to waive all objection, or to admit the boarding to be an execution of the order, can admit of little doubt; and that would fully authorize the admission of the order and account, and the instructions, so far as they related to the waiver by the defendant of a strict compliance with the terms of the order. If the first clause of these instructions had authorized the jury to consider the directions given by the order as changed, or varied by the parol testimony, they would have been erroneous, and would have contradicted the instructions already given as to the meaning of the order. The instructions did not authorize by connecting the parol testimony a different conclusion to be drawn as to the meaning of the order, but in reference to the execution or performance of the request, they did authorize the inquiry whether a literal performance, or one accommodated to the necessities of the case was to be expected.
What shall be regarded as performance of a written contract or request, is of necessity a matter of fact under proper instructions, and there is no departure from the rule, which does not authorize parol testimony to vary or contradict a written contract, when applied to the fact of its having or not having been executed. It is not in human foresight to provide against all possible contingencies, which prevent the exact and literal fulfilment of every written direction, when it is clearly given; and the force of circumstances must be allowed in some degree to enter into the inquiry, when the question is, not what the legal construction of a written paper is, but whether there has been such a performance as entitles a party to claim compensation, for what he has done under it.
There does not appear to be sufficient reason to authorize the verdict to be set aside under the motion for a new trial.
Judgment on the verdict.