Sherwood testified, and in this he was not contradicted, that the plaintiffs authorized him to sell bonds issued by the county of Lewis & Clarke of the face value of $5,000, and warrants issued by the then territory of Montana of the face value of $5,000, at 85 per centum, and that he did agree for the plaintiffs to sell and thereafter deliver to the defendant such securities for $8,500. This was an entire contract, and, unless modified, the plaintiffs, not having performed it, were not entitled to recover. All negotiations subsequent to the original contract were in writing, and their construction and legal effect were questions of law for the court; but, those questions having been submitted to the jury, and rightly decided, the fact that they were determined by the jury instead of by the court is not an error for which the judgment will be reversed. Thompson v. Roberts, 24 How. 233-240; Miller v. Insurance Co., 2 E. D. Smith, 268; Cumpston v. McNair, 1 Wend. 457-463; Pangburn v. Bull, Id. 345-352; Hall v. Suydam, 6 Barb. 83-88; People v. O’Neil, 49 Hun, 423, 4 N. Y. Supp. 119, affirmed 112 N. Y. 355, 19 N. E. Rep. 796; 1 Thomp. Trials, § 1020. We think the correspondence not only warrants, but compels, the conclusion that there was at least a severance of the original contract. • By that contract the plaintiffs agreed to sell, and the defendant to purchase, bonds of the county of Lewis & Clarke of the face value of $5,000 for 85 per cent. Subsequently the plaintiffs delivered bonds issued by that county of the face value of $5,300, for which the defendant refused to pay 85 per centum, because they bore interest at the rate of 12, instead of 15, per cent. However, the defendant, by his letter of April 13th, agreed to pay $4,341.77, which was less than 82 per cent., which proposition the plaintiffs accepted by their letter of April 29th. The defendant wrote to plaintiffs in the letter of April 13th that $4,400 of the price agreed *652on was placed to their credit, and subject to their check at sight. May 10, 1872, the defendant refused a draft for the full amount agreed to be paid for the bonds, and in explanation said, in a postscript to his letter of May 13th, that if the plaintiffs had drawn for $3,000 or $3,500, it would have been paid, but that he would not pay for the bonds in full until the warrants were received. June 17th the i defendant paid the plaintiffs’ draft drawn for $3,500 against the price ', of the bonds. This is quite inconsistent with the position taken on the trial that the original contract had not been severed, and that ■the failure to deliver the territorial warrants was a defense to a recovery of the purchase price of the bonds. It seems to us that the only debatable question arising out of the correspondence and transaction is whether that part of the contract relating to the warrants was abandoned or rescinded. The decision of this question, depending, as it did, upon the construction of writings, was a question of law for the court, but which the court was not asked to determine. The defendant, by his answer, did not set up the . failure to deliver the territorial warrants as a defense to the plaintiffs’ cause of action, but as a counterclaim; and, had the case been tried upon this theory, it may be that damages would have been allowed him. But on the trial the defendant, by his counsel, insisted that the failure to deliver the territorial warrants was a defense to the action, and asked that a verdict be directed for the defendant, and also that the complaint be dismissed. The court was not asked to rule that, if the original contract had been severed, the plaintiffs were still liable in damages for their nonperformance of that part relating to the territorial warrants, which should be set off against the price agreed to be paid for the bonds. Neither was the court asked to instruct the jury to assess the damages sustained by the defendant by the nondelivery of the warrants, and set off the amount against the demand of the plaintiffs. The defendant insisted that, if damages were sustained by him, they amounted to a defense instead of a counterclaim, and so he insists on this appeal, and we see no way of affording the relief which we might have been able to give had the case been tried upon the theory of the answer, and damages denied him.
The judgment should be affirmed, with costs. All concur.