It is the peculiar province of the court to construe and expound written instruments, and to declare their legal effect. — Martin v. Chapman, 6 Port. 344. Is.the case before us, the evidence of the agency of Rhea Sykes & Co. for Cromwell, Haight & Co. consists of a written receipt, executed by them (R., S. & Co.) for the note sent them as the agents, of the plaintiffs in error, in accordance with their letter under date, the 20th December 1845* to the payees. If the proof set out in this record is the only evidence that Rhea* Sykes & Co. were the agents of the payees, then we have no hesitation in pronouncing as a legal conclusion- upon it, that it would not justify the court below in giving either of the three instructions prayed' for by the defendants below, but warranted the affirmative charge given. The receipt, unconnected with ether proof of agency* does not show, when construed with reference tothe letter above mentioned, that R., S. & Co. could discharge Kidd & Co. before making the payment to the payees .of thd. note.' The receipt is but the tyritten acknowledgment of a contract, similar to that the law would imply without it,'and does not have the effect to change the agent of Kidd & Co., appointed by them to pay their debt, into an agent of the payees, with authority to discharge them from it without payment.
But the court below clearly mistook the law in holding that, the witness Henrick might speak of the contents of the letter of date 8th March .1846, without any attempt to procure its production or accounting in any way for its non-production. It is true that the letter, the contents of which is sought to be proved* was shown to have been in the possession of a third party; but it is not shown that the plaintiff below could not have compelled its production by subposna, or have obtained it without one.
We think the other objections to the proof not well taken. As to the frame of the question, to the answer to which an objection is raised, as not being responsive, we can give no opinion, since the interrogatories are not in the record. The proof *653of agency, as made by Henriek in his answer to the 4th interrogatory, though inadmissible of itself, was legitimate in ¿onnection with the proof with which it was offered.
Let the judgment be reversed and the cause remanded.