The opinion of the Court was drawn by
Dickerson, J.Writ of entry. Both parties claim to derive their title to the demanded premises from Daniel E. Somes. The demandant claims under a mortgage deed from said Somes to him, dated Nov. 24, 1857, and recorded Nov. 27, of the same year. . To make out his claim of title the tenant introduces a warranty deed from William B. Pierce to him, dated January 1st, and recorded Feb. 13, 1862. • The tenant, also, puts into the case the copy of a writ with the officer’s return, William B. Pierce against Daniel E. Somes, dated Nov. 13, 1858, and secured by attachment of the demanded premises on the same day, a copy of the execution, issued on the judgment rendered thereon, and dated Sept. 29, 1860, and a copy of a levy of the same on the premises in controversy, Oct. 29, 1860.
The demand in the suit, Pierce against Somes, is a lien claim for building a house on the demanded premises; and the principal question is whether the proceedings in that case can avail the defendant to defeat the plaintiffs’ action.
Two written contracts for building a house are introduced, the one dated May 4,1853, and signed by William B. Pierce, on the one part, and "D. E. Somes and others,” on the other part; the other is dated January 25, 1858, and signed by William B. Pierce and D. E. Somes. The defendant claims that the house was built under the first contract, the second *302contract being only a supplement to the first; and the. plaintiff contends that both contracts are entire and independent, and that the second superseded the first.
The construction of contracts is a question for the Court, and the intention of the parties is to be gathered from the terms of the contract, and not from parol testimony. So, also, the effect of a subsequent contract upon a pre-existing one is to be determined by the Court.
Though some of the stipulations in these contracts are identical, yet they differ widely in respect to date, consideration, time of performance, the rights and duties of the parties in regard to materials to be furnished, and the style of finish required. No reference is made in either contract to the other. Each of itself is a complete, entire, and independent contract; and each is inconsistent, and irreconcilable with the other. Both are impossible of execution in respect to the same subject matter. Amidst this conflict of provisions, which shall take precedence? Upon this point both contracts are silent. The Court has no right to decide that a particular provision in one contract shall control, or supersede a particular provision in the other, as this would be making a new contract for the parties. If the provisions of the second contract were only additional to those of the first contract, and not inconsistent and irreconcilable therewith, the Court might treat them as one contract. But, where pai’ties make two contracts upon the same subject matter, which cannot be reconciled without rejecting some of the material stipulations in the one or the other or both, the Court will not enter upon this work of expurgation, but will endeavor to give effect to the one contract or the other, as the intention of the parties shall seem to require.
In making the second contract — the parties had some purpose. Was it to revive the first contract, or to supplement it, or make a new and independent one? There was no occasion to re-write the old contract, in order to revive it, if it had become obsolete. The parties had only to carry out all its provisions, except that relating to the time of per*303formance — to make it effectual. That they intended to do something more than to revive the old contract is clear from the fact that they introduced new provisions into the second instrument. If their purpose had been simply to supplement the first contract, they would have introduced additional provisions only, and not inconsistent ones; for they cannot be presumed to have intended to nullify certain stipulations of the first contract in the second ore, and to preserve the others, in the absence-of any intimation to that effect, except what arises from the fact of their repugnancy. The intention and purpose of the parties -in entering into the engagement of January 25, 185'8, can be carried into effecF'only upon the ground that they then made a new, entire and independent contract. This construction is sustained by the completeness, harmony, and independence of the provisions of that contract, and the acts of the parties.
The first contract, though required by its terms to be performed in June, 1853, was allowed to slumber till the winter of 1856 and 1857, when a few doors were made. Again, it reposed till the fall of 1857, when "the parties staked out the ground, and Somes had some digging done for the foundation.” "The second contract was entered into Jan. 25, 1858, and the entire work was completed in the following August. This contract seems to have imparted activity to the parties, and given practical effect to their intentions. The wants and tastes of Somes in regard to materials, arrangement, and style of finish had changed during the lapse of five year’s; and a contract was entered into, suited to this altered condition of things. This contract superseded the contract of May-4, 1853, if -indeed that continued in force till this was made ; by entering into this contract, the parties waived all their rights under the other.
Nor is this state of things changed, as is argued by the counsel for the defendant, from the testimony of Pierce, that the work was done under the old contract. The interest of this witness, as Avarrantor, of the defendant’s title, is so strong, and his testimony is so inconsistent with itself, and *304irreconcilable in tbis respect with the terms of the second contract, and other facts in the case, that we cannot adopt the conclusion arrived at by his counsel.
From the view we have taken of this case, it becomes unnecessary to determine at what particular time the lot was staked out by the parties or the legal effect that act, and the making of the doors in the winter of "1856 and 1857” had upon the parties under the first contract'. Their rights are to be settled under the contract of Jan. 25, 1858.
At that time Somes was mortgager of the demanded premises, and Pierce’s lien claim, if any he had, attached exclusively to Somes’ right of redemption. It does not appear, from the report of the case, that the necessary legal measures have been taken by Somes, Pierce, or the defendant, to redeem the demanded premises from the plaintiffs’ mortgage, and there must be
Judgment for demandant.
Appleton, C. J., Cutting, Walton, Barrows and Dáneorti-i, JJ., concurred.