The opinion of the court was delivered by
Bennett, J.TMs is an action of assumpsit on a special contract, evidenced in writing. Its provisions are somewhat peculiar, and the contract itself may be referred to. I, for one, should have had some doubt whether, by a fair construction of the contract, the five hundred dollars was not to have made a part of the common fund; but the defendant having given a different iiractical construction to it, we are disposed to adopt Ms in that particular.
The decision of the county court in relation to the termination *17of tlie contract, was very clearly correct; but as to the defendant’s right to retain for his expenses home, we think it was erroneous. The defendant chose to violate his contract in this particular, and not to return home, according to the obligations of the contract. It might bo a matter of some considerable importance to the plaintiff, to have him return when the contract was put an end to, that the parties might come to a settlement. Though the defendant saw fit at a subsequent time to return, yet, having violated the contract on his part, we cannot well see how his subsequent return can give him a right to retain under it.
The exceptions show that the plaintiff admitted on the trial, that the defendant would have had a right to have retained out of the common fund, to have made him good for the lost clothing and expenses home, if he had returned in pursuance of the contract. Under this admission, his not returning cannot affect his right to retain for the lost clothing. Though we might think that the defendant had no right to retain for the lost clothing, by the terms of the contract, yet, as this was virtually conceded to be his right, the court should not be complained of, by the plaintiff, for acting upon his admissions.
The judgment of the county court is reversed and the case remanded.