delivered the opinion of the court:
1. The first error assigned and relied upon for a reversal of the judgment relates to the action of the trial court in sustaining objections made by the plaintiffs to questions asked the plaintiff Johnson on cross-examination, as to how many of the logs delivered by him were twelve feet long, and how many of other lengths, and also in sustaining objections to the following questions asked the defendant on direct examination: “ What is meant by the term, ‘commercial purposes,’ as used in the con*325tract ? ” “ What does the term, ‘ suitable and usual saw logs/ as used in the contract, mean?” “What character of logs does the commercial character of that mill require? ” In this we think there was no error. It was the duty of the court and not of the witness to construe the contract, and define the meaning of the terms used therein. If the words, “commercial purposes” and “suitable and usual saw logs,” had, by usage or custom, a local or peculiar signification, as defendant now contends, and were so used and understood by the parties to the contract, it would have been competent for the defendant to have shown that fact by the evidence of persons who had such knowledge of the practice and course of business in that particular line as to make them competent witnesses, for the purpose of ascertaining the sense in which the words were used in the contract and to assist the court in its construction: Hill’s Code, § 697. It was not, however, shown in this ease that the words had any local or peculiar signification, or that the witness was qualified to testify upon the subject. Unless the words “ commercial purposes” and “suitable and usual saw logs,” did have a local or peculiar signification, and were so used by the parties in making the contract, it is clear that the evidence sought to be elicited from the plaintiff Johnson on cross-examination as to the length of logs delivered by him was incompetent, for the contract does not provide that the logs shall be of any particular length provided they do not exceed twenty-four feet and four inches.
2. It is also claimed that the trial court erred in permitting the plaintiffs to prove that after the commencement of this action the defendant served upon them a written notice rescinding the contract, and refusing to allow them to proceed further thereunder. It.is difficult to perceive upon what theory this evidence can be competent under the issues herein. This action was commenced on the eighteenth day of May, 1891, to recover an *326installment then alleged to be due on the contract price of certain logs claimed to have been cut and delivered by plaintiffs to defendant between the first day of January and the first day of May, 1891, in pursuance of a written contract between the parties, by the terms of which all logs so cut and delivered were to be paid for by the fifteenth day of May. The cause of action had therefore accrued, according to the allegations of the complaint, at the time this action was commenced, so that proof of the rescission or attempted rescission of the contract by defendant, after the commencement of the action, could in no way tend to prove any of the allegations of the complaint. For the plaintiffs it is argued, in support of the rulings of the court in admitting this evidence, that it was competent for the purpose of explaining plaintiff’s failure to put the logs on the railways according to their contract, prior to the commencement of the action. From the evidence it appears that part of the logs, for want of room, had not been placed, on the rollway at the time the action was commenced, but had been delivered on the bank approximately near, as stipulated in the contract, but at the time notice was served upon plaintiffs the railways had become empty, and they were proceeding to put the logs thereon when served with notice; and hence, it is claimed, the evidence was competent to show that the failure to put the logs on the railways was the fault and misconduct of the defendant, and not of the plaintiffs. But the notice of the rescission of the contract does not in terms forbid the delivery of the logs already cut on the railways, and the plaintiff Johnson testified that he refused to so deliver them unless the notice was withdrawn, although the defendant told him to do so and he would pay for them; so that, eyen if the delivery of the logs on the railways after the commencement of the action would entitle plaintiffs to recover therefor in this action, such delivery was not prevented by reason of the conduct of the defendant, *327and hence it was error prejudicial to the defendant to admit in evidence the written notice of the attempted rescission of the contract.by him.
3. From the evidence it appears that plaintiffs had cut and delivered to defendant, during the months of November and December, 1890, about six hundred thousand feet of logs, upon which there was due, at the time the contract of the twenty-ninth of December was entered into, about one thousand four hundred dollars. After the December contract, defendant, from time to time, advanced and paid to plaintiffs divers sums of money upon orders drawn upon him by them, which the plaintiff Johnson testified were not drawn on any particular fund, until after March 8, 1891, but were applicable to either the November or December work, or the work done under the contract, and that “the payment of the one thousand eight hundred dollars [credited in the complaint] was by payments on our orders and accounts paid by defendant for us. I cannot give the items that were paid on this contract alone, as we had a running account, and he owed us for work done in November and December, 1890, prior to ibis contract.” Witness then gave an itemized statement of the payments made after the first .day of January, 1891, which amounted in the aggregate to two thousand one hundred and four dollars and sixty-six cents, and then says that “part of that amount was applicable to the November and December work; I do not know how much; there were payments also made in November and December, 1890, on the work of. those two months.” The defendant testified that the November and December work amounted to one thousand four hundred and seventy-three dollars, according to a settlement between him and the plaintiffs' made on March 2, 1891, and that he advanced and paid to plaintiffs, on the November and December work, and on work done under the contract, from November, 1890, to May 1,1891, a total sum of three thou*328sand six hundred and ninty-one dollars and sixteen cents, giving a statement of the items, and that said items were paid on account, without particular application to either, and he also put in evidence the vouchers therefor. On motion of the plaintiffs the court withdrew from the jury all testimony in regard to payments not made on the contract in this action, and the checks, receipts, and orders relating thereto, for the reason, as the bill of exceptions states, “ that it includes items paid on the November and December work, and that the payments proved should be confined to payments made on the contract.” It appears from the testimony of both the plaintiffs and defendant that the payments were made on account, without special reference to the November and December work, or the work done under the contract, and that neither party was able to separate the amount applicable to either account, except by applying to the contract the balance remaining after paying for the November and December work, and under such a state of facts it seems to us to have been error for the court to undertake to withdraw from the consideration of the jury all testimony in regard to payments not made directly on the contract in this action, and confine the testimony to payments made on the contract, as such a rule would virtually deprive the defendant of all evidence of payments on the contract. The entire evidence, it seems to us, should have gone to the jury, with a direction to apply to the contract the balance remaining after payment for the November and December work.
4. The next and remaining alleged error is in the refusal of the court to give the following instructions: “ By the terms of the contract the plaintiffs could not cull the timber, and if they cut the convenient timber to the neglect of the remote portions of the ground mentioned, they are responsible to the defendant in this action for such damages as defendant has shown by the proof he has sustained by reason thereof”; and, “by the terms of the con*329tract the plaintiffs are not permitted to cut all the near timber, neglecting the remote until all the near timber is removed. The contract specifying three years as the time for completing the taking off of said timber, does not permit plaintiffs to postpone the cutting of all the remote timber until the last.” Conceding these two instructions to have stated the law correctly, as an abstract proposition, it seems to us they were not applicable to any issues made by the pleadings in this case. The alleged breach of the contract, relied upon by defendant, as averred in the answer, is that “ plaintiffs agreed by their said contract to cut all the sound fir, tamarack, and pine timber of a certain size on the ground cut over, and further not to cull the same, but that plaintiffs violated their said contract by culling and wasting said timber, leaving suitable saw logs in the tops left on the ground, by culling the trees easiest to get at, leaving those requiring more labor, and to so convert into suitable saw logs and deliver the same, as well as cutting and delivering a lot of unsound logs, wind-shaken and decayed in nearly twenty per cent of the lot, to defendant’s damage of three hundred and fifty dollars, it requiring from fifty cents to a dollar a thousand feet more to utilize the timber left on the ground, and in inconvenient localities of the ground cut over than the contract price of plaintiffs.” This allegation is not clear and distinct, and it is difficult to determine just what the pleader intended; but it seems that the more reasonable construction of the allegation is that the breach of the contract attempted to be assigned and relied upon is for culling the timber on the ground cut over, and leaving suitable timber thereon not cut into saw logs, and cutting and delivering a lot of unsound logs. It is not alleged that respondents had violated their contract by cutting all or any of the near timber to the neglect of the remote, or by cutting the convenient timber to the neglect of the remote portions of the ground to be cut over, and for these rea*330sons, and upon this construction of the allegations of the answer, it seems to us that the instructions asked and refused attempted to present to the jury a question not made by the pleadings, and therefore were properly refused.
It follows that the judgment must be reversed and a new trial ordered. Reversed.