From the case, as made up, it is very difficult to determine whether any error was committed, on the trial. The facts transpiring on the trial, as stated in the case, were stricken out, on motion of the plaintiffs’ attorney, and yet we can see that there must have been some evidence which was considered by the judge, in relation to the agreement set up in the answer as a counter-claim, and used on the trial only as a defense. But no point is made that the findings are against the evidence. This agreement, though denied in the plaintiffs’ reply to the answer, must have been proved, or admitted, on the trial, which proof could not have been included in the testimony stricken out; for, in open court, the defendant rested his case solely upon this instrument, not as a counter-claim, but as a defense. FTo objection or exception was taken that the instrument had not been proved. By implication this must be deemed to have been admitted. The decision of the judge was based upon the effect of the instrument, which could not have been done, without proof of it, in some form.
*18It is perhaps an important fact to know in whose pos- ■ session this instrument was found, if effect is claimed for' it as a defense. If it was found in the defendant’s possession, there would be no evidence of its having been an agreement made and accepted by the parties. Otherwise, perhaps, if in the possession of the intestate. But as the case presents no exception that the judgment is against the evidence, and the judge decided that the instrument itself was a defense to the action, we must assume, upon this review, that the instrument was duly proved. Indeed the plaintiffs’ brief concedes this. ' It says the defendant put it in evidence; and also, that “ the only question to be determined, in this case, is whether the instrument given in evidence constitutes any defense to the action.” This statement concedes, also, I think, that this instrument was found among the papers of the intestate; which fact the plaintiffs’ counsel also assumes, in his third point, for the sake of the argument. The case, however, shows no evidence given upon either of these points. After judgment, we must assume that evidence sufficient to sustain it was given.
I understand the rule to be, in such cases, that where, at a trial, a party assumes and treats the questions made as being questions of law, to be decided by the court, and they are passed upon and ruled against him, he cannot, on appeal, insist that the questions decided by the court involved a question of fact. So held in Barnes v. Perine, (12 N. Y. 18.)
Upon this statement of facts to be assumed, the intestate accepted, on his part, the agreement made by the defendant on his part. The single question that remains is, was this a binding agreement, so as to create a defense to the note sued upon ?
There was then an agreement in the possession of the intestate, expressing a good consideration, and binding upon the defendant. The defendant had received, as the *19agreement admits, a certain sum of money, and besides, certain demands which the intestate held against him; and in consideration of these, the defendant bound him-, self, his heirs, executors, administrators and assigns, to support the intestate during his natural life. This was an obligation that could be enforced, if the defendant refused performance, or damages for non-performance could be recovered. In this case there was no evidence upon the subject of performance or non-performance, and we must presume this not to be a point in the case; or, if so, then the burthen of proof was upon the plaintiffs, and none has been presented.
If we are right in these views, the only question in the case is, the construction of the agreement set up as a defense, viz., does the agreement in question, for its consideration, include the note sued upon, as one of the claims or demands which the intestate held against the defendant at the date of the agreement, and which formed the consideration for his written promise ?
It is well settled that the intention of the parties, in a written contract, must be collected from the language of the instrument, and from the whole instrument taken together. And in order to carry that intention into effect, the literal import of the words used may be disregarded, if a reasonable construction of the instrument demands it. On the 19th of September, 1865, the note in suit was given; on the 15th of November, less than two months afterwards, the agreement set up as a defense was given. By the well established rule of law, the giving of the note is prima facie evidence that, at the date of it, there was a settlement of all demands between the parties, and that the note remained as the only claim existing between the parties to it; or at all events, from the maker to the payee. (Lake v. Tysen, 6 N. Y. 461, and cases cited.)
The agreement set up as a defense would, in like manner, be prima facie evidence of an accounting between the *20same parties, and especially of all that the intestate held against the defendant, including the note, in question, but for the expression therein, in the words “ hearing date November 15, 1865.” The meaning of these words is the only question in the case. Though these words, ordinarily, and standing alone, would exclude the note of 19th September, yet the preceding words in the agreement are sufficient to show that the parties had another accounting on the 15th of November, and the legal presumption would be, that the accounting of the last date included all prior liabilities. The agreement recites that the defendant, on that day, received from the intestate a sum of money; he also received claims and demands of the intestate against him, on that day. How much money, and what was the character of the demands, and of what they consisted, the agreement fails to state; but if the parties on that day settled, or had an accounting, and brought all their demands down to that date, as the law will imply, then all the demands so taken into the account would bear date on the 15th of November, 1865. If the note in question, and the money received on that day, (15th November, 1865.) were intended to be made demands bearing date on that day, the agreement is consistent in its language. The money received certainly bore date on that day. Something besides money, in the character of claims and demands, was received on the same day. The parties therefore had an accounting on that day. They had an accounting only two months before. Unexplained, the presumption is, that all their demands were included. It is improbable that the intestate would have paid money to a person indebted to him, when he held his note. I think the accounting which was had on the date of the agreement is presumptive evidence of a settlement of all demands. (Lake v. Tysen, 6 N. Y. 461. Defreest v. Bloomingdale, 5 Denio, 304.)
*21[Third Department, General Term, at Albany, February 7, 1871.There has been no error shown which is sufficient to reverse the judgment. It should be affirmed.
Judgment affirmed.
Miller, P. Potter and Parker, Justices.]