The contract, out of which the present contention arose, was entered into, or attempted to be entered into, under section 4536, Code of 1876. Under that section, the warden of the penitentiary is empowered “to employ or hire out the convicts, to be used without the walls of the penitentiary, either upon public or private work within the State; all contracts of hiring to be approved by the governor; but such hiring shall not be for a longer term than five years.” The present contract was entered into between Bass, the then warden of the penitentiary, and Comer, the hirer; was approved by the gov*141ernor, and was to take effect January 1st, 1881. The contract-is most elaborate in its provisions, and guards the interests of the State, and the welfare of the convicts, with most sedulous-care. In and by said contract, “the said John G-. Bass, as warden of the penitentiary of Alabama, under and by virtue of the laws of said State, do hereby hire to the said J. W. Comer about one hundred convicts (100), more or less, of the Alabama-penitentiary, or 14f per cent, of the whole number of suitable' convicts in the penitentiary ; the said J. W. Comer agreeing to receive, as may be directed by the said John G-. Bass, all convicts at the various jails of the State, or walls of the penitentiary, free of charge to the State,” &c. One of the main questions argued arises out of two clauses of the contract, which read as follows: “ Said convicts to be delivered, from time to time, during the existence of this contract, at the sole ojrtion of John G. Bass, or his successors in office. . . . It is. further agreed, that if the said John G. Bass, or his successors in office, should make demand by writing, or a verbal order, upon the said J. W. Comer, for any convict or convicts in his custody, the said J. W. Comer will deliver such convicts at once to the said John G. Bass, or his successors in office, or his agent.” The argument is, that inasmuch as the contract places the matter of delivery at the sole option of the warden, and inasmuch as Comer bound himself to deliver back, or return to the warden, any convict or convicts in his custody, whenever the same should be demanded, this leaves it entirely discretionary with the warden whether he will deliver, or continue to deliver to Comer, any convicts, or permit them to remain after they are delivered; and having, by the very terms of the contract, the privilege and option not to comply, the court can not coerce him to do that 11411011 the contract does not bind him to do. If this be the correct construction of the clauses of the contract copied above, this conclusion would seem to follow.
1-2. In construing contracts, “ it is a rule, that the whole contract should be considered in determining the meaning of any or all its parts.”—2 Parsons on Contr. 13. “The contract should be supported, rather than defeated.—Ib. 15. “All the parts of the contract will be construed in such a way as to give force and validity to all of them, and to all of the language used, where that is possible.”—Ib. 16. “All instruments should be construed contra proferentem; that is, against him who gives, or undertakes, or enters into an obligation.”—Ib. 19. So, the conduct of parties under a contract, constituting a practical construction of it given by both parties, is frequently a very important element in the interpretation of contracts that appear ambiguous.—Chicago v. Sheldon, 9 Wall. 50.
3. The contract, in the present case, is most elaborate in its-*142details. It enumerates and imposes very many duties on the hirer, and for a failure to perform any one of them provides, that it “ may be terminated or annulled at any time, at the option of said John Gr. Bass, or his successor in office, after giving due and fair notice, in writing, that the matter complained of has not been remedied.” What necessity, we may ask, for this elaborately prepared provision of the contract, if the warden could terminate it at any time, by simply calling in the convicts he had delivered to Comer, and refusing to deliver any others ? The construction contended for by appellee will render this last clause, which expressly authorizes rescission for cause, useless and redundant. We must construe the whole contract together, and so construe it, if possible, as to make it a binding obligation on each party; not an obligation binding Comer, leaving the warden free to observe it or not, at his own option, and with or without a reason.
Construing the entire contract under the rules above declared, and so construing it ut res magis valeat quam ggereat, we hold, that the clause first above copied was inserted with no intention whatever of reserving to the warden the right to destroy the contract by failing to deliver convicts. It is common knowledge, that convictions have been, and may be had, in different parts of the State. The hirer, under the terms of the contract, bound himself to receive the convicts assigned to him, either at the penitentiary, or at any county jail, where the convict might be confined. The record discloses that the warden made other contracts, by which he bound himself to deliver convicts to other hirers. It is reasonable to suppose, those other hirers had their business operations in different parts of the State. Now, some of the convictions would probably be at places more convenient to one hirer, than to another. The different hirers were not probably engaged in the same pursuit, or line of business. Some, very many convicts, would be better adapted to one service, than to another, and some probably not adapted to any out-door service, ' Some lines of service would probably be less favorable to escapes, than others would be; and it is known that some convicts have much more desperate characters than others. All these considerations suggest — nay, command — that the warden exercise asound discretion, in properly distributing and placing the convicts; and these furnish an ample field for the operation of his option as to the time of delivery. And these same considerations apply, also, to the clause second above copied. Other reasons may exist, why the right to re-call convicts should be reserved in the warden. Pardons may be granted, reversals had, or experiment may show the convict was not adapted to the service he was assigned to. In either of these events, a re-call would become necessary and *143proper. We do not think either of these clauses authorized the warden to disregard the obligation to deliver.
4. We have shown above, that the warden of the penitentiary is clothed with an option in the matter of assigning convicts to the hirer, and we have attempted to express some of the principles on which such option or discretion was expected to be exercised. It is plain that fitness of the convict to the particular service, and convenience of the convict’s place of confinement to the hirer’s place of operations, should be classed as among the considerations which should control the exercise of- such option. Having a' discretion as to what particular convicts he would deliver, it can not be affirmed that Comer had the right to demand, as of right, that any particular or specified convicts should he delivered to him. This would be to take away the warden’s option and discretion. The most the court could do, under this contract, would be, to command the warden to exercise his option and discretion, under the rules above suggested.—4 Wait’s Actions, 360, 362, 376 ; High on Ex. Leg. Rem. § 42.
5. We have shown above, that the warden had authority, with the approval of the governor, to hire out the convicts, to be used without the walls of the penitentiary.; such hiring not to he for a term longer than five years. — Code of 1876, § 4536. The language of the present contract is: “ This contract to take effect on the first day of January, 1881, and to terminate on the first day of January, 1882. * * * It is further agreed,'that this contract may be continued from year to year, from date the same takes effect, during a period of five (5) years, provided that J. W. Comer complies fully with all of its requirements.” This, under the interpretation' of the contract we have given above, was valid and binding for one year. Is it binding for a longer term ? Is the clause providing for a continuance from year to year, within the power conferred by the statute ? It is manifest the privilege of renewal was inserted for Comer’s benefit, and he alone has the option to claim it or not. Is this within the delegated power of the warden, or is it one of the implied, incidental powers, necessary to the complete exercise of the granted powers? — Ewell’s Evans on Agency, marg. (108); 1 Wait’s Actions, 221.
“ Although an agent may employ the usual and necessary means of carrying the agency into effect, this rule is limited by the principle, that the acts done are within the scope of the' authority conferred on him by the principal; and if the act substantially varies from, or exceeds the authority, in nature, extent, degree, or legal effect, it will not bind the principal.” 1 Wait’s Actions, 240; lb. 224. Among the incidental powers “ are those which enable the agent to employ all the necessary *144and usual means of executing the principal authority with effect. The reasonableness of the rule is beyond, dispute. Its operation has no effect in weakening the salutary principle, so much insisted upon in the law-books, to the effect that an authority must be strictly pursued; and this fact was fully recognized at an early period.” —Ewell’s Evans on Agency, 142, 154, 205, 211, 235, pages 145 to 167 in margin; 1 Parsons on Contr. 50; Taylor v. White, 44 Iowa, 295; Durer v. Evans, 59 Ind. 454. The same doctrine, in substance, has been asserted in this State.— Cox v. Robinson, 2 S. & P. 91; Fisher v. Campbell, 9 Por. 210.
It would seem almost unnecessary to comment on the difference between the contract the statute empowered the warden to make, and the terms of the one shown in this record. A contract, ex vi termmi, imports a mutual agreement between two or more parties; and to be binding on one, must be equally binding on the other.— Eskridge v. Glover, 5 S. & Por. 264; 1 Brick. Dig. 376, §§ 13, 14, 15; 1 Chitty on, Contr. 11. In making such contract, each party assumes fixed and defined obligations, or acquires or parts with property rights. There are some exceptions to this rule, but they do not affect this case. The warden had the statutory power to let convicts to hire. This included the • authority to stipulate the number or percentage of the convicts to be let, the price or wages to be paid, and the duration of the contract, with many details not necessary to be noticed here. Such contract, when concluded, would secure, during the whole term, a proper delivery to the hirer of his share of the convicts, his obligation to receive them whenever, and as often as tendered, and his debt and duty to pay the agreed hires or wages at maturity. No matter what fluctuations there might be in values, what changes in the prices of labor, each contractor would be alike bound to observe and keep his contract. Under the contract actually agreed upon, while the State bound itself to deliver convicts to Comer at the prices agreed upon, during the whole term of five years, if Comer so elected; yet, if by financial pressure, or other cause, Corner desired to be relieved from further compliance with the contract on his part, he had but to say so, and he would stand discharged therefrom at the end of any given year. The statute authorized the making of a contract. The writing conferred on Comer the option, after the first year, of saying whether or not there should be a contract, and reserved to the warden, acting for the State, no corresponding privilege. Coming to this conclusion, we need not determine whether or not the writing can be treated as a contract for any of the years except the first.. — See Eskridge v. Clover, supra. If it is not a contract, then the relator has no clear legal right he can enforce by mandamus. If it is a contract, *145then it is not such an one as the statute authorized the warden to make, and it can not be enforced. There was, then, a valid contract for only one year, which expired January 1st, 1882, now past.
6. When these proceedings were instituted — August, 1881 —the relator was entitled to the relief hereinabove indicated. He was also entitled to relief when the Circuit Court pronounced judgment on the demurrer, when the appeal was taken, and when the cause was argued and submitted to this court for decision. The time has now expired within which the warden was authorized to deliver any convicts under the contract. The consequence is, that no writ of mandamus can be awarded.
The judgment of the Circuit Court is reversed, at the costs of the appellee; but, inasmuch as the term of the contract has expired pending the litigation, a judgment will be here rendered, denying the prayer of the petition.