[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 100 I am satisfied, after a careful examination of this case, that the referee committed no error, in admitting the parol evidence to aid in the interpretation of this contract, which can prejudice the plaintiff; and that he gave the correct construction to this agreement. The language of the contract itself favors the construction put upon it by the referee. By the terms of the contract, the defendant was to pay Hinnemann for the construction of this dwelling-house, the sum of $1,700, lawful money of the United States, and convey to him the house and lot on the corner of Mulberry and Jackson streets by deed to said Hinnemann, upon the signing of the agreement, and the house on the lot on Jefferson street, and to pay him "five hundreddollars in an order on Messrs. Woodruff Taylor, of Oswego."
It is not a reasonable construction of the contract itself to hold, that these parties meant a cash draft on Woodruff Taylor. He was to pay $1,700 in cash, and $500 in an order on Woodruff Taylor, of Oswego. The legal definition of an order does not ordinarily mean a cash draft. BOUVIER says that "an informal bill of exchange on paper which requires one person to pay or deliver to another goods on account of the maker, to a third party, is called an order." (2 Bouv. Law Dic., Little Ord. 251.) While a draft or bill of exchange is defined to be an open letter of request from, and order by, one person on another to pay a sum of money therein mentioned to a third person on demand, or at a future time therein specified (1 Bouv. Law. Dic. 189), a draft at the present day is the common term for a bill of exchange. (1 Burr. Law Dic. 401.) The title "draft" or "draft *Page 101 and bill of exchange" are used indiscriminately. Edwards says the bill of exchange, popularly termed a draft, is in the form of an open letter directing, to whom it is addressed, to pay the sum of money therein specified to a third person named in the instrument, on account of the writer or person by whom it is drawn. (Edw. on Bills and Prom. Notes, 41; Chitty on Bills, 130, 154.) It must be payable in money. (Thompson v. Sloan, 23 W., 73; Cook v. Satterlee, 6 Cow. 108; 5 id. 186.) Not so with an order; the more common definition is that given by BOUVIER as an order to pay goods on account of the maker to a third person.
It was only necessary in this case to prove that Woodruff Taylor were manufacturers of these articles, necessarily used at house building, to raise a reasonable presumption that it was the intention of these parties that this order should be for such articles, especially, it was proved that these parties knew that such was the business of Woodruff Taylor. We cannot shut our eyes to the fact, that the plaintiff was, in this agreement, entering into a contract to build a dwelling-house for the defendant, when these very materials would be required in its construction, and when we add to this, the fact, that the defendant in the contract agreed to pay $1,700 in cash, and an order on Woodruff Taylor for $500; the presumption is very strong, that this order did not mean a cash draft on them. To my mind it is clear. Be this as it may, if the matter was left in doubt, it was certainly competent to remove it, by the parol evidence in the case. The rule is a common one, to receive evidence external to the contract in aid of the interpretation of its language. Such evidence, however, cannot be received to contradict or vary the terms of a written contract, and where the instrument has a settled legal meaning, its construction is not open to parol evidence. (2 Parsons on Contracts, 63.) But where, as in this case, the order may mean a money order, or an order payable in these kind of building materials, there can be no doubt that the interpretation of the language of the contract may be aided by extrinsic evidence, showing the intention of the parties in the use of the language *Page 102 in the particular instrument. (2 Parsons on Contracts, 76.)
I am quite inclined to the opinion, that it was not competent for the defendant to prove that he held a note or due-bill made by Woodruff Taylor, payable in these materials. Its admission, however, affords no ground for granting a new trial, for the case is too clear for the defendant, without this evidence, to be doubted. If this evidence were out of the case, the finding must have been the same, and were the finding otherwise, it would be erroneous.
The judgment of the Supreme Court must be affirmed.