The opinion of the court was delivered by
Royce, Ch. J.This was an action of assumpsit, trial by court, and judgment for plaintiff. The only item of claim made by the plaintiff upon the trial about which there was any dispute was the item of 400 dollars referred to in the exceptions ; and inasmuch as it appears that the defendant conceded that the plaintiff was to be paid that sum, the only controversy concerning it seems to have been whether it should be paid out of the estate or by the defendant personally. The plaintiff claimed that it was agreed that he should be paid that sum in consideration of the repairs he had made upon property that belonged to the estate of Hubbard, and that the defendant promised to pay him. The court found the agreement as the plaintiff claimed; and that finding is conclusivé, if it was based upon competent evidence.
The defendant claims that the evidence introduced to support the finding was incompetent for the reason that it varied the *641written agreement of September 28th. That agreement is operative to transfer to the defendant all the interest that the plaintiff then had in and to and under the will of T. J. Hubbard, except the sum of 400 dollars to be paid to him annually as provided by the award before that time made. It did not profess to transfer any claim that the plaintiff had against the defendant personally. The 400 dollar claim did not accrue to the plaintiff by virtue of or under the will of T. J. Hubbard, but was against the defendant personally and based upon his agreement and promise to pay. The claim not having been transferred by that agreement, the evidence objected to and admitted did not have a tendency to alter or vary it.
The defendant further claimed that said agreement covered all rent earned and not collected prior to August 1st, 1885. We think the construction the court put upon the agreement was correct. It should be construed in connection with the award made and such" other facts and circumstances as induced and influenced the making of the award and agreement. The award was to be prospective in its operation, and provided for the future income the plaintiff was to receive from the Hubbard estate ; the first payment to be made on the first day of August, and each year thereafter; leaving the past income to which he was entitled to be adjusted and paid as provided by the will.
The only matter that appears to have been submitted to the arbitrators was for them to fix and determine the amount that should be paid to the plaintiff yearly as his portion of the income of the estate of Hubbard; and that was the only matter determined by the award. The defendant demanded the agreement as a guarantee that the plaintiff would abide by the award and as evidence that he had no further or other' claim to the estate than the payments provided for by the award. It was not intended and should not be construed as embracing income earned prior to August 1st, 1885, to which the plaintiff was entitled under the will.
We do not find that any error occurred upon the trial; but *642as the amount of the judgment to which the plaintiff is entitled has not been ascertained, the judgment is pro forma reversed, and cause remanded.