It appears that on the 22d day of January, 1853, Hays, the defendant in error, entered into a written contract with one John Lewis, whereby Lewis bound himself to sell and deliver to Hays, on the 24th day of the same month, 258 hogs, with the privilege of increasing the number to 300, Lewis agreeing to take them back into his possession, and keep them till the first of October following, and then re-deliver them to Hays ; the lightest of the hogs not to weigh less than 140 lbs. gross. And Hays bound himself to pay Lewis $4.25 per cwt. for the hogs, as follows: $300 on delivery, $200 on the 15th of March thereafter, $200 more in spring or summer, as Lewis needed it, and the balance to be paid on the return of the hogs by Lewis to Hays, in October. On the 24th of January, 1853, Lewis delivered the hogs, being 288 in number, to Hays, and afterwards took them into his keeping under the provisions of the contract; and Hays, at the same time, paid Lewis $300, and subsequently, in different payments, $600 more. In July of that year, Lewis, without the consent of Hays, and contrary to his directions, sold and delivered the hogs to Johnson, the plaintiff in error, for $850, with notice of the purchase by Hays.
This contract must be so construed as to carry out the manifest intention of the parties, apparent from the language, context and subject matter of the instrument, and the interpretation or *107understanding of the parties, to be gathered from their acts. Giving full effect to each of the provisions of the contract, the property, in the hogs passed to Hays by the sale and delivery on the 24th day of January; and Lewis, in taking the hogs back into his possession to keep till October, became the bailee of the property. This provision for the delivery and transfer of the property was not illegal, or against public policy, but a proper precaution for the safety of the vendee, and not irreconcilable with a rational interpretation of the other provisions of the contract — the privilege of increasing the number of hogs to 800, extending only to the time of the delivery on the 24th of January ; the stipulation that the lightest of the hogs should weigh at least 140 lbs. being a mere guaranty as to the weight; and the provision that the hogs were to be weighed in October, and Lewis to be entitled to $4.25 per cwt., being the mere mode of ascertaining the full amount to be paid by Hays, making it thereby the interest of Lewis to keep the hogs well, and to return the whole number.
Judgment of the district court affirmed, and cause remanded to the common pleas for further proceedings.
Swan, J., having formerly been of counsel, did not sit in this case.