ON REHEARING.
Opinion delivered April 29, 1912.
Hart, J.It is insisted by counsel for appellant in their brief on motion for rehearing that the court erred in refusing to give instruction No. 2. Counsel for appellant in their original brief did not argue nor ask us to reverse the judgment on account of any alleged error in refusing it. Hence, under our rules of practice, it will be deemed to have been waived and abandoned, and we can not now consider it. Bowling v. Stough, 101 Ark. 398; Rule 3, Sup. Ct. Rules.
Again counsel for appellant insist that the court erred in instructing the jury as follows:
“This is a suit on a contract between the parties to the suit in which the plaintiff claims the defendant owes him $1,000 and plaintiff claims defendant employed him to get up and make an estimate of timbers in Meyers bend, agreeing to give him $1,000 when a sale of the land was made, and that the the estimate was made, and for that reason he was entitled to the $1,000. So you are instructed that if you believe from the evidence that the defendant in this case did employ the plaintiff to make an estimate of Meyers bend, agreeing to give him $1,000 provided he made a sale, and a sale of the land has been made, then he would be entitled to his $1,000. The defendant, on the other hand, claims he didn’t employ the plaintiff to make an estimate of the timber, but that the plaintiff was in the employ of the man who was figuring on buying the land, and came to the defendant and told him that he could either make the sale go through or make it fail, and demanded that he give him $1,000 to make it go through, and that he executed the due bill in evidence and contract in evidence with the understanding that if he made the deal go through, or if the deal did go through he would give him $1,000. You are instructed that, if this was true, if defendant didn’t employ plaintiff to make the estimate, and that it was made for the parties, and that he demanded the $1,000 from Mr. Vaughan to make the deal go through, and that deal didn’t go through, then he would not be entitled to judgment in this case, although the land was afterwards sold to other parties.”
The correctness of the instruction depends upon the construction to be given the due bill sued on and the separate agreement accompanying it which were set out in our original opinion to which reference is made. Where the provisions of a written contract are apparently conflicting or the terms so ambiguous or doubtful that the meaning can not be determined from the instrument itself, parol evidence is admissible to show the subject-matter of the agreement or circumstances surrounding the execution of the contract and the conduct of the parties under it as a means of correctly interpreting the language used. Dugan v. Kelly, 75 Ark. 55; Haney v. Caldwell, 33 Ark. 136.
Tested by this rule, a majority of the court are of the opinion that the admission of parol evidence to explain the contract was competent, and that no error was committed by the court in giving the instruction complained of. • The theory of the plaintiff was that the land was chiefly valuable for the timber on it, and that the estimate of the timber would greatly aid in making a sale of the land. He testifies that the estimate was made by him for the purpose of aiding the defendant in the sale of the land, and that it was agreed and understood between them that he was to have the $1,000 for which the due bill was given, provided a sale was made by the defendant to any person. On the other hand, the defendant testified that at the time the estimate of the timber was made by the plaintiff the defendant had a sale of the timber pending with one Romunder, and that the plaintiff, being in the employ of Romunder, told him that, unless he agreed to give him $1,000, he would “throw the deal.”
As above stated, a majority of the court is of the opinion that the terms of the contract are ambiguous as'to whether the deal referred to was the pending sale or whether the parties contemplated a sale to any person to be made in the future. In this view of the case, the court correctly submitted the respective theories of the parties to the suit to the jury, and the verdict of the jury is binding upon us.
Upon a reconsideration of the case, Mr. Justice Wood and myself have come to the conclusion that the court should have told the jury as a matter of law that the contract in question referred to a sale pending at the time it was executed, and that it erred in submitting to the jury the question of whether the contract referred to any sale that might be made by the defendant. We are therefore of the opinion that the court should grant a rehearing in the case. ít follow^, however, from the opinion of the majority that the motion for rehearing should be denied, and it is so ordered.