— The instrument declared on in this case bound Blount and Henry, in a certain event which happened, to collect the note of Miller, pay certain specified debts out of the proceeds, and pay the balance to Shook. The balance of the note, some three hundred and seventy dollars, Blount and Henry failed to collect. It is contended for defendants, appellees here, that Shook released them from that part of their contract, by having knowledge of, and assenting to the decree of June 23d, 1873. That decree finally disposed of all the funds, except the said balance, and left that open for further litigation, raised by Miller’s cross-bill against Shook, his co-defendant. The Chancellor had decreed there was a lien on the land as follows : “And it appearing to the court from said report that there is due on the note from said respondent Miller to respondent Shook, mentioned in said bill and claimed as collateral security by complainants, the sum of four thousand, one hundred and ninety-five dollars and thirty-two cents, up to this date. It is, therefore, adjudged and decreed by the court that said note is a lien upon the lands described in complainant’s bill, io the amount of said note and interest, as above stated.” The decree then, as we have said, postponed or reserved the consideration of said balance of three hundred and seventy dollars. Both the original, and Miller’s cross-bill, were subsequently dismissed by the Chancellor, without further notice or disposition of said three hundred and seventy dollars. There was oral testimony, pro and con, that Shock’s solicitor had knowledge of, and assented to the terms of the decree of June 23d, 1873. _ •
_ The charge of the court was, “that if the jury believed from the evidence that plaintiff Shook consented to the decree of 23d June, 1873, contained in said record read to them, and that at the time he did so he intended it to operate as a release of the defendants, Henry and Blount, from the collection of the balance of said Miller’s note, then plaintiff could not recover.” In giving this charge the court clearly erred. The construction of the Chancellor’s decree of June 23d, 1873, was a matter for the court, and the intention of *304the parties should have been determined by the court from the face of the decree itself. There is nothing in the decree which releases Blount and Henry from any obligation to collect the residue of the Miller note, and the court should have so instructed the jury. If Miller had obtained a decree on his cross-bill against Shook, defeating the colle'ction of that balance, that would have exonerated Blount and Henry. But Miller’s cross-bill was dismissed.
There was nothing in the objection that witnesses were allowed to testify to the argument of counsel in reference to the decree. If such testimony had had any bearing in the case, it could have been proved in no other way, not being in writing. The fatal objection to it is, that it was worth, nothing when proved, as it neither did, nor could exert any influence in the construction of the Chancellor’s decree.
Reversed and remanded.