The opinion of the Court was drawn up by
Shuplisy J.It is insisted, that the Court ought not, by its instructions, to have withdrawn the matters relied upon in de-fence from the consideration of the jury» The jury are to decide matters of fact and those only. When the facts are found by uncontradicted and unquestioned testimony, or by agreement, or by special verdict, their legal effect is matter of law, to be determined by the Court. Usually the intentions of parties are clearly and fully disclosed by the facts proved; and in such case neither Court nor jury can properly disregard them, and infer and substitute other and different intentions. There are many cases, however, in which the intention is not clearly or necessarily disclosed by proof of the facts. As in criminal cases, whether property be taken furtively or a wound be inflicted with an intention to kill, will not necessarily be disclosed by proof, that the property was taken, or that the wound was inflicted. So in civil actions, proof of certain acts or declarations might not disclose whether they were perform:ed or made with an intention to defraud or deceive. In such cases, when the proof of the facts does not disclose the intention or purpose, and that is to be ascertained to enable the Court to determine the legal effect of the facts, coupled with intention, it is the province of the jury to find the intention or purpose, as a matter of fact.
In this case there being no contradictory testimony, it was, under the instructions, received as proof of the facts stated in it. There was no intention or purpose not disclosed by the facts to be ascertained, and thereby to be made an additional fact, to enable the Court to determine their legal effect.
The grounds of defence presented, and which it is insisted were incorrectly withdrawn from the consideration of the jury, will be found to present only questions of law.
The first is in substance, whether the defendant would be relieved from his contract to purchase, and from the payment *488of his notes, by the change in the character and value of the property occasioned by the subsequent destruction of the mill by fire. There is no additional fact to be found. It is most clearly a question to be decided by the Court. The defendant had received a valuable consideration for the notes in the bond obliging the plaintiff to convey the estate to him upon payment of them. That consideration had not been impaired or varied by the destruction of the mill. He was in no condition to inquire, whether the plaintiff could or could not perform, until he had performed on his own part. Then he would be entitled to a conveyance or to damages to be recovered by a suit upon his bond. Whether the plaintiff had contracted to sell to another, or whether the property had been destroyed by the elements, was in a legal sense immaterial to him, until he had by his own performance become entitled to a conveyance. Eaton v. Emerson, 14 Maine R. 335. There is very little of similitude between the present case and one, where the parties to the contract of sale and purchase supposed property to be in existence at the time, which had in fact been before destroyed.
■ The second ground of defence was, that the contract for the sale and purchase of the mill had been rescinded. The facts being established by proof, this also was a question to be decided by the court. The jury were not entitled to infer it. It would not be rescinded by proof of the intentions of the parties, unless those intentions had been made effectual by proof of their acts or declarations. The facts stated in the deposition of Stephen Hill, Jr. would have no tendency to prove, that the contract had been rescinded. Those acts took place after the defendant had failed to make his first payment, and after this suit had been commenced to enforce it. The plaintiff might, without its having any effect to rescind the contract, endeavor to make sale of the estate to another, being satisfied that the defendant’s rights, if any be had, should be ascertained by a suit upon the bond.
The third ground of defence, that the defendant would be relieved from the payment of his notes by the assertion on *489the part of the plaintiff of a “ right to treat the contract for a deed broken on the part of the defendant and his rights under it at an end,” presents surely only a legal proposition arising out of the facts proved. If it were to be decided, as it is contended that it should have been, the effect would be, that the defendant might avoid the payment of his note by refusing to perform, and thereby forfeiting all rights under the contract,, if the plaintiff would insist upon his legal rights.
If judgment must be entered for the plaintiff, the counsel for the defendant desires, that it should be delayed, that the defendant may have an opportunity to file a bill in equity for relief. He appears to have occupied the mill one year before it was destroyed by fire. A witness has stated, that a reasonable rent for it during that time would be $400. It does not appear, that the defendant had paid any part of the purchase money. The note in suit is for $350. The Court does not perceive, that he is in any danger of suffering loss, should he be compelled to pay the amount of this judgment.
Judgment on the verdict.