delivered the opinion of the Court. It was necessary for the defendants, in order to show that the condition of their bond was not broken, to< prove two things ■ —
*1551. That they determined to operate on the land, within the meaning of the agreement, the winter next ensuing ; and
2. That they gave notice thereof to the plaintiff within the tune that they had a right so to do by the agreement.
By the aid of a bill of discovery, the letter of September 2, 1835, addressed by the defendants to the plaintiff, was produced, and it seems to be a sufficiently explicit notice of the determination of the proprietors to operate the then ensuing winter. The phrase is, have concluded to commence arrangements for operating upon said tract next winter, by the 1st of October next, prior to which time we wish you to inform us, whether you elect to retain,” &c.
Had the plaintiff’s election to rescind the contract been made before the 1st of October, the time thus limited in this notice, but more than fifteen days after the notice given, the care might have presented another question, namely, whether the defendants had not enlarged the time stated in the bond, by 'he form of their notice. But as the plaintiff did not make an) election till after the 1st of October, this question does not arise.
' The remaining question was, whether the proprietors had then determined to operate the following winter.
There was evidence tending to show, that they had come to a conclusion to do something with the land, to turn it to profit, and therefore if they could not sell the land itself, it was their determination to sell off the growing limber, in parcels or lots, as they could meet with purchasers.
This mode of managing timber lands is called selling the stumpage. I
The question was, whether this was a determination to operate on the land, within the meaning of the agreement.
The defendants offered evidence, which was objected to by the plaintiff, to show that by usage this word “ operate,” was used in Maine and in reference to Maine lands, in a peculiar sense, and included selling stumpage. This evidence was admitted, and subsequently some evidence was given on the other side tending to a contrary conclusion. But the evidence being contradictory, the whole was ultimately set aside, and the jury were directed to disregard it.
*156The question must then be determined by the effect and legal operation of the words of the contract, as they stand in the agreement of the parties.
The evidence of the determination of the proprietors to make arrangements was left to the jury, and they found a verdict for the defendants.
The plaintiff now moves the Court to set aside the verdict, and grant a new trial, on two grounds, viz.
First, because it ought to have been left to the jury to determine what the parties intended by the term operating upon the land ; and
Secondly, because, if it was competent to the court to instruct the jury on this point, the direction in this respect was wrong.
On the first point, the Court are of opinion, that when a new and unusual word is used in a contract, or when a word is used in a technical or peculiar s.ense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury ; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage. But when no new word is used, or when an old word, having an established place in the language, is not apparently used in any new, technical or peculiar sense, it is the province of the court to put a construction upon' the written contracts and agreements of parties, according to the established use of language, as applied to the subject matter, and modified by the whole instrument, or by existing circumstances. This was the course adopted on the present trial. The defendants offered evidence of usage which was resisted by the plaintiff, and although at first received, was ultimately rejected, as the plaintiff desired that it might be. Had the verdict been the other way, and had the defendants excepted, it would have presented a different question. But the plaintiff objected to the admission of evidence aliunde, evidence of peculiar usage, and the objection was sustained. There being then no evidence of usage or other evidence aliunde, to affect *157the ordinary meaning of the contract and agreement of the parties, the Court are of opinion that it was the duty and province of the court to put a construction upon this contract, and that there was nothing to leave to the jury, in regard to the meaning and effect of the written agreement. On the other part of the case, the court instructed the. jury that they were not to regard the evidence as to the meaning of the word “ operate,” but were to take it in its common and established meaning, and that it did include selling the growing timber, as well as cutting and sending it to market at the owner’s expense. This is the direction alleged to be wrong, and the plaintiff contends that in its true meaning and acceptation, it intended only, cutting timber or clearing the land, or performing other labor or making other improvements thereon at the owner’s expense. This question is hot without difficulty, especially to be decided as the plaintiff contends that it must be, not in reference to any local usage of Maine, but as it must have been understood by the plaintiff residing here in Massachusetts, and according to its known use, as a part of the English language. On the whole, and in view of all the circumstances, the Court are of opinion that the direction was right.
The object of the purchase of these lands, among all parties, was profit. There were two modes of making profit. The one, to sell the land at an advance ; the other, to use it in some mode which would be productive, without parting with the land itself. This might be done by employing men and teams to go on and cut timber and get it out, on money wages, or at some share or lay, or by making roads, landing-places and other preparations for clearing and settlement, or in various other modes. To sell the growing timber to individuals or companies would require the employment of surveyors, and agents to lay it out in lots, either lots of land or lots of trees, and generally to superintend the operation.
There is.another view that somewhat strengthens this conclusion to be drawn from the agreement itself. In construing a written instrument, every part of it is to be considered with a view to ascertain the object and scope of it, and thus get at the intent of the parties, which is the governing rule of con*158struction. Here there was a provision for giving a deed and making the contract of sale absolute some time after the contract was made. In case of selling stumpage, the condition of the lands would be altered and they might be greatly deteriorated in value ; and yet there is nothing in the agreement, that looks either to charging the plaintiff, Eaton, with any portion of the expense, or accounting to him for any part of the proceeds of the sales of timber, before his right of election to rescind the contract should cease, and the contract of sale become absolute. Hence we are led to conclude, that it was understood and intended, that if any mode of managing or dealing with the lands, should be adopted by the proprietors, by which profits should be drawn from the sale of its timber, and the value of the freehold diminished, and the state of the land for all purposes of sale essentially altered, then the plaintiff, on notice, should make his election in a short period, before any such change should be actually made. As this mode of dealing with timber lands was one of the known and accustomed modes of using them and turning them to profit, and one likely to be resorted to, as no provision was made for it, unless under the term operating upon it, we .are led to conclude, that that mode was included under that broad generic term, and that it was intended to embrace every method of dealing with the land, and turning it or its products to profit, other than that of a sale of the freehold.
It is said in behalf of the plaintiff, that this construction greatly abridged his term of election. Be it so. The shorter term was as much a matter of contract as the longer, and the true question is, whether the contingency happened, on which it depended. The term of election to hold or rescind such a contract, in the fluctuating times, when this contract was made, was undoubtedly a great advantage to the plaintiff; it gave him the option of holding the land if it should rise, and of rejecting it if it should fall, and that without any consideration, except the use of the money advanced. But by the same contract, the election was given to the defendants to shorten and abridge that period by an act of their own, by coming to a determination to operate upon the land, whatever was intended by that term, in however small a degree, and eiving the plain*159.iff notice of it. The simple question is, what the parties understood and intended by this provision. On the whole, the Court are of opinion, that they intended any mode of improving the land to the purposes of profit, other than a direct sale, and that surveying, laying it out in lots, and selling growing timber, was such a mode of converting it to profitable use and was a mode of operating according to their understanding, that the direction in this respect was right, and that judgment must be rendered on the verdict for the defendants.