The opinion of the Court was drawn up by
Emery J.It is urged by defendant that a great obstacle against a recovery by the plaintiff arises from the fact, that to the jury was presented for decision the question whether the thirteen feet space was the wasteway intended by the parties when the bond was given. By their verdict we must understand that such was the intention of those interested and entering into the contract. It was further found by the jury that the same space was, soon after the giving of the bond, cut down to the depth of twenty inches, and kept free and open from the first of June to the first of October, in each year, after the date of the bond.
These facts go very strongly to warrant the direction of the Court “ that it was a fulfilment of the bond on the part of the defendant, that in that event it would be immaterial what depth of water flowed over the new wasteway, and that they would find a *229verdict for the defendant, although the water was not kept down to the point to which the wasteway was cut down.”
We have not arrived at this conclusion without much hesitation. But considering the experience which must have existed previous to the giving of the bond, and the nature of the obstruction which was to be reduced, we are led to believe that the principal object of the bond was to secure the cutting down of the wasteway twenty inches below the top of the then present wasteway. It was equivalent to saying, you shall keep the water drawn down the distance required, by cutting down tire wasteway of the mill-dam twenty inches below the top of the present wasteway of the dam. We ought not to suppose that it was the object of the parties to call for a greater sacrifice, because if it had been, it seems quite surprising that any designation should have been made of the number of inches, which should be cut away. It does not absolutely follow that a man may always be protected against responsibility merely from the circumstance that he did not expect all the consequences, which may flow from some unguarded expressions, that may be retained in an instrument, which he may have signed. Indeed it is generally safer to conclude that every expression has been well considered, and effect should be given to all the terms, and in cases of doubt, the construction should be against the person intending to be bound. But it is not to be forgotten that the condition is introduced for the relief of the obligor. It is to be justly expounded to carry out the intention of the parties, to be gathered from the whole instrument.
It is argued that the object was to prevent the flowing of the land above in wet summers. And that there were other modes of reducing the water by means of gates. This may all be true. Nothing however of the kind is presented to us in the bond, or the condition. It might be true that the water would be thoroughly enough drawn down by nearly prostrating the dam or the waste-way. But could that have been the intention of the parties when twenty inches was named as all that was expected? We would rather adopt a construction, which should prevent surprize upon the individual, who appears immediately to have proceeded to reduce the wasteway to the limits prescribed, and which for years *230conformed in its effects to the practical construction, which seemed satisfactory when the stipulation was made.
For these reasons the exceptions must be overruled.