By the Gourt,
Dixon, C. J.In cases like this, wé fully concur with Judge Beonson in saying, that “it is an elementary principle that an erroneous decision-is not bad law —it is no law at all;” and could we become satisfied that our last decision (13 Wis., 67) was in this unfortunate pre*150dicament, or was an unauthorized dictum, we should hasten . , . . „ , . . with alacrity to retrace our steps. Subsequent investigations ¿aye only confirmed the views which we there took of the law.
THe rights and liabilities of the parties under the contract were, in substance, these: The plaintiffs were bound to manufacture and deliver the machine in the manner specified, at the city of Milwaukee, on or before the first day of July. The defendant was bound, on the same day (or before, if notified of its earlier delivery, and he chose to do so), to be present to receive it, and pay the fifty dollars and the storage. The obligation of the plaintiffs to manufacture and deliver, and that of the defendant to be present and receive and pay, were mutual and concurrent. The presence of both parties, by themselves or agents, at the time and place designated, was necessarily contemplated, since the obligations resting upon them respectively could not otherwise be discharged. The plaintiffs, if they had manufactured and furnished ready for delivery by their agents at Milwaukee, such a machine as the contract' called for, would have so far performed the duty imposed upon them as to be entitled to damages for the defendant’s violation of duty in neglecting to be present, accept and pay the sums stipulated. For this purpose it was not necessary for them to set apart the machine so as to vest the title in him subject to their lien for the purchase money and charges. Having manufactured and forwarded the machine upon the faith of his promise to receive and pay for it, it would be most unreasonable and unjust to say that they should not have compensation for any actual loss or expense which they had thus incurred. The defendant, by his failure to appear and perform the contract on his part, would have been in no situation to insist upon an actual delivery or separation of the machine. Delivery and payment were concurrent acts, the one dependent on the performance of the other, and the neglect of the latter effectually excused the former. It would have been enough to have enabled the plaintiffs to recover their actual loss and expenses, if they had shown that they were ready and willing to perform the contract on their part. Chitty on Con., 633. As stated by Mr. Parsons (2 Parsons on Con., 484), they had, *151Tinder the circumstances, three courses open to them; to consider the machine as their own (which they did, by not ting it apart, so as to constitute a delivery), and sue for the damages occasioned by the non-acceptance; or to consider it as the defendant’s (which they might have done, by separating it from the others so as to be capable of identification),, and sell it, with due precaution, to satisfy their lien on it for the price, and then sue and recover only for the unpaid balance of the price; or in the latter case, also, to hold it subject to the defendant’s call or order, and then recover the whole price which he agreed to pay. We deem these principles to be sound and well supported by the authorities, and are willing to stand by them. The rule of damages given by the court below was therefore correct, and the judge was right in refusing the instruction asked by the appellants on that subject.
The case is clearly distinguishable from those in which the counsel suppose a different rule was established. They will all be found, on examination, to have been cases where the articles purchased or manufactured were, from their nature, susceptible of being distinctly known and identified, or where they were set apart by the vendors, so that the ven-dees, on paying the price, could receive and dispose of them if they desired. Such was the case of the wood work of the wagon, in Crookshank vs. Burrell, 18 Johns., 58; the carriage, in Mixer vs. Howarth, 21 Pick., 205; the sulky, in Bement vs. Smith, 15 Wend., 493; and the promissory note, in Des Arts vs. Leggett, 16 N. Y., 582. As was decided in the last case, the vendor, choosing to go for the price, becomes, after a valid tender of the chattel in performance of the contract, a bail- ' ee for the vendee. But we know of no principle of law which would allow the vendorto keep the goods as his own, and at the same time come upon the vendee for the price— compel the latter to pay for, and yet not get the property ; which would be the case were the present plaintiffs to be permitted to recover the price irrespective of the amount of damages which they had sustained in consequence of the defendant’s non-acceptance. The machine here was brought to Milwaukee in pieces, its several parts separated and pack*152ed with, those of a great number of other machines of identical'form and pattern, so that the same part of one machine was equally suited to every other. It remained in this condition until after the day fixed for its delivery and acceptance. It is idle, therefore, to talk about there having been such a delivery as would have vested the title in the defendant, provided the jury had found that the machine was such as the contract called for. The property in all the machines remained in the plaintiffs, subject to their absolute dominion and right of disposal. ■ Nothing could have changed it as to the defendant, short of a separation or distinct ascertainment, by mark or otherwise, of the machine intended for him, so that he could afterwards, on paying the price, have obtained it if he chose.
If the defendant’s, had been the only contract for a machine to be delivered in Milwaukee, and his the only machine delivered, or if it had been unlike all the others, the question would have very different. The authorities cited by counsel would then have afforded some foundation for their position.
And here we may correct another mistake on the part of the counsel. They seem to suppose that the delivery of several machines in Milwaukee, in whatever form,- so that one could have been obtained by the defendant within the time prescribed, was all that was necessary under the contract to pass the title; and that this court so decided when the cause was here for the first time. 9 Wis., 146. Bat this was not so. The delivery there spoken of was a delivery in the general sense of bringing the machine to Milwaukee, in pursuance of the contract, so as to‘entitle the plaintiffs to recover damages for the defendant’s non-acceptance,- — not that specific delivery made necessary by law, to transfer title. The contract of the defendant was distinct and independent of that of every other person, and a compliance with its terms, as well as the law, required a distinct and independent delivery, in order to vest the title in him. He never agreed to receive his machine in fragments, commingled with those of the machines of a hundred other persons, in such manner that nothing could be identified. The way in which the ma-*153chinés came to the hands of the consignees,-was the plaintiffs’ fault, or at least, not the fault of the defendant.
The word “ team,” as used in the contract, is of doubtful signification. It may mean horses, mules or oxen, and two, four, six or even more of either kind of beasts. We look upon the contract and cannot say what it is. And yet we know very well that the parties had some definite purpose in using the word. The trouble is not that ‘the word is insensible, and has no settled meaning, but that it at the same time admits of several interpretations, according to the subject matter in contemplation at the time. It is an uncertainty arising from the indefinite and equivocal meaning of the word, when an interpretation is attempted without the aid of surrounding circumstances. It appears on the face of the instrument, and is in reality a patent ambiguity. The question is, Oan extrinsic evidence be received to explain it ? We think it can. There is undoubtedly some confusion in the authorities upon this subject, especially if we look to the earlier cases; but the later decisions seem to be more uniform. As observed by Chancellor Desaussube, in Dupree v. McDonald, 4 Des., 209, the great distinction of ambiguitas latens, in which parol evidence has been more freely received, and ambiguitas patens, in which it has been more cautiously received, has not been sufficient to guide the minds of the judges with unerring correctness; some of the later cases show that there is a middle ground, furnishing circumstances of extreme difficulty. Judge Stout was of opinion (Reisch v. Dickson, 1 Mason, 11), that there was an intermediate class of cases, partaking of the nature both of patent and latent ambiguities, and comprising those instances where the words are equivocal, but yet admit of precise and definite application by resorting to the circumstances under which the instrument was made, in which parol testimony was admissible. As an example, he put the case of a party assigning his freight in a particular ship by contract in writing; saying that parol evidence of the circumstances attending the transaction would be admissible, to ascertain whether the word “ freight ” referred to the goods on board of the ship, or an interest in the earnings of the ship. This distinction seems *154to be fully sustained, by tie later authorities, and we can discover no objection to it on principle. Reay v. Richardson, 2 C., M. & R., 422; Hall v. Davis, 36 N. H., 569; Emery v. Webster, 42 Maine, 204; Baldwin v. Carter, 17 Ct., 201; Drake v. Goree, 22 Ala., 409; Cowles v. Garrett, 30 Ala., 348 Waterman v. Johnson, 13 Pick., 261; Mech.’s Bank v. Bank of Columbia, 5 Wheat., 326; Jennings v. Sherwood, 8 Ct., 122; 1 Greenl. Ev., §§286, 287 and 288. The general rule is well stated by the Supreme Court of Hew Hampshire, in Hall v. Davis, as follows: “As all written instruments are to be interpreted according to their subject matter, and such construction given them as will carry out the intention of the parties, whenever it is legally possible to do so, consistently with the language of the instruments themselves, parol or verbal testimony may be resorted to, to ascertain the nature and qualities of the subject matter of those instruments, to explain the circumstances surrounding the parties, and to explain the instruments themselves by showing the situation of the parties in all their relations to persons and things around them. Thus, if the language of the instrument is applicable to several persons, to several parcels of land, to several-species of goods, to several monuments, boundaries or lines, to several writings, or the terms be vague and general, or have divers meanings, in all these and the like cases, parol evidence is admissible of any extrinsic circumstances tending to show what person or persons, or what things, were intended by the party, or to ascertain his meaning in any other respect; and this without any infringement of the general rule, which only excludes parol evidence of other language, declaring the meaning of the parties, than that which contained in the instrument itself.”
If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time, of their understanding of them, ought not to be excluded. And so it was held in several of the cases above cited. 2 C., M. & R., 422; 42 Maine, 204; 13 Pick., 261. Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of *155the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be ed, whilst the other is but circumstantial.
And though in general the construction of a written in-strum ent is a matter of law for the court — the meaning to be collected from the instrument itself; yet, where the meaning is to be judged of by extrinsic evidence, the construction is usually a question for the jury. Jennings v. Sherwood, and other cases above. The circuit judge was therefore right in receiving parol evidence to ascertain the sense in which the word was used by the parties, and in submitting that question to the decision of the jury.
But he was clearly wrong in receiving evidence of the statements of the plaintiffs’ agent to the witness Gunn, at the time of making the contract with him. The occasions were different — the two contracts entirely disconnected, and though both concerned a machine of the same pattern and manufacture, yet what was said in the one case was not a part of the transaction in the other. It was no part of the res gestae. If the agent Chase, in negotiating with Gunn, had made an admission of his representations to the plaintiff, evidence of such admission could not have been received. Mil. & Miss. R. R. Co. v. Finney, 10 Wis., 388. It would be going much too far, were we to hold that it was proper to give the jury the agent’s statement to Gunn, as evidence tending to prove that a similar statement was made to the plaintiff. If it has any such tendency, it is so remote that the law cannot lay hold of and apply it.
The question then comes up, Must the judgment, for this reason, be reversed? The defendant’s counsel insist not— that the evidence before the jury was sufficient without this, and if it had been rejected, the verdict must have been the same. We are inclined to take the same view. The defendant’s testimony was clear and positive as to the kind of team — that the agent said “ one span of horses ” would work the machine up to the warranty. In this he was not contradicted, but rather corroborated by the agent, who was himself upon the stand. We would naturally expect, if the fact had been otherwise, the agent would have said so. On the *156other hand, he testifies very frankly that the defendant said had but one team; and that he told him one good team would work the machine. The admission of the improper evidence could not, therefore, have affected the finding of the jury upon this point; and consequently the plaintiffs were not prejudiced by it.
We can hardly believe that the argument of the plaintiffs’ counsel upon the construction of the warranty, that it referred to the capacity of the machine without regard to the kind of team employed, and was satisfied, if, under any circumstances, and with any number of horses, it could be made to perform as alleged, was urged with any real hope of success. Such a construction would be directly opposed to the manifest intention of the parties.
The j ury, upon proper evidence and under proper instructions, having found that the machine delivered at Milwaukee was not such as the contract called for, the judgment upon their verdict must be affirmed.
Ordered accordingly.