The opinion of the Court was delivered by
Kennedy, J.Were there no other matter assigned for error in this case than the admission of the evidence mentioned in the bill of exception, 1 do not know that, we would reverse the judgment on account of it; because it is not easy to imagine that the jury could have been misled by it so far as to believe that the liability of the defendant to pay the plaintiff’s claim was either sustained or strengthened by it. It, at most, only evinced an anxiety'on the part of the defendant to have the plaintiff satisfied, through Thibault & Brothers,, with such articles as he seemed to wish. But we think the court erred in their instruction to the jury as to the . construction.which ought and must be given to the order drawn by the defendant in.favour of the plaintiff for $100 worth of .watches op Thibault & Brothers. The drawing of this order and the refusal of Thibault & Brothers to satisfy it in such watches or watch as the plaintiff or the person to whom he passed it, after it had been accepted byThibault & Brothers,chose to demand, formed the grounds upon which the plaintiff sought to recover from the defendant.-. The court, instead of putting a construction on the order and directing the jury in respect to it, referred it to the jury to put such construction on it as they should think comported best with the intention of the parties under the circumstances given in evidence. Thibault & Brothers were, at the time the order was drawn,.large dealers in watches and jewelry, and having at all times a large stock of such goods and wares on hand, the reasonable if not necessary presumption is, that the understanding of the parties at the time the order was drawn, was that Thibault & Brothers should satisfy it by giving to the plaintiff, out of their stock of watches on hand when the order should be presented to them, the amount thereof, and if they offered to do this, the plaintiff should be bound to accept thereof. This Thibault & Brothers, as it appears from the evidence, were willing and offered at all times to do, but the plaintiff or the person to whom he gave the order, declined to accept of and insisted upon having the order paid in a description of watches which Thibault & Brothers happened not to have at the time and could only procure by going or sending elsewhere and buying them, for the special purpose of satisfying not the order but the demand of the plaintiff or the holder, of it- This,ms it appears to us, the plaintiff or holder of the order had no right to expect, much less to demand; for it would be contrary to the ordinary and general practice and course of doing such business and therefore unreasonable.
Judgment reversed, and a veniré de novo awarded.