that should reduce the sum due Walsh on the final settlement below the amount of the order.

The court declined to give either of said requests, but instructed the jury that, under the pleadings, the verdict of the jury must be for the defendant, if, at the time of the acceptance, the words "to be paid out of the last payment" were understood and agreed by the parties to the order to refer to the last payment called for by the contract, and that if they believed the words "to be paid out of the last payment" were understood and agreed by the parties to refer to the last payment called for by the contract with Walsh, and if Walsh failed to complete the contract without fault on the part of the defendant, the time of payment never arrived, and the fund from which payment was to be made never existed, and the defendant is not liable on this acceptance under these pleadings; and also instructed the jury that, by the legal effect of the words "to be paid out of the last payment," considered in connection with the contract between defendant and Walsh, the order is not payable until 30 days after Walsh had fulfilled that contract, and then out of the $800, the fund which then would become due to Walsh. The jury returned a verdict for the defendant; finding specially that the defendant completed his building substantially as Walsh was required to complete it by the contract and specifications; that deducting the sums of money expended by defendant in completing the building, and the sums paid to Walsh under the contract, from the contract price, left a balance of $2.26; that to have completed the building as Walsh's contract required him to complete it more money would not have been required than the defendant expended. To the admission of the above testimony objected to, and to the refusals of the court to instruct the jury as requested, and to the instructions as given above, the plaintiffs alleged exceptions.

H. F. Naphen and Lund & Welch, for plaintiffs.

The evidence admitted tended, not only to modify and vary the agreement from that written on the order, but it seeks to import into the contract a condition or contingency of which the writing furnishes no intimation whatsoever. It therefore attempts to prove a new agreement, and was inadmissible. Lee v. Howard Fire Ins. Co., 3 Gray, 583; Shaw v. Gardner, 12 Gray, 488; Ridgway v. Bowman, 7 Cush. 268; Russell v. Barry, 115 Mass. 303; Keller v. Webb, 126 Mass. 393.

The evidence relative to what took place between Lafield and the plaintiff Proctor, previous to the signing and acceptance of the order, and the conversation between them relative to certain words or agreement not inserted in the order, was clearly incompetent. All previous verbal agreements must be taken to be merged in the written contract of the parties. This permitted the jury to substitute, in the place of the written agreement, the acts and statements of the parties prior to the execution of the contract. Lee v. Howard. Fire Ins. Co., ubi supra; Shaw v. Gardner, and other cases cited ubi supra. There is no ambiguity in the words "to be paid out of the last payment.” Ridgway v. Bowman, ubi supra; Black v. Bachelder, 120 Mass. 171, 173; Keller v. Webb, ubi supra. The case of Franklin Sav. Inst. v. Reed, 125 Mass. 365, applies merely to what was written on the face of the note. No explanation of it was offered or admitted in evidence. The case of Stoops v. Smith, 100 Mass. 63, goes only to the consideration, and there was fraud and failure to perform the representations of the consideration. In the case at bar the consideration was the furnishing of the lumber, and no fraud or failure of consideration is alleged, or attempted to be proved. The defendant, after accepting the order, was bound to retain in his hands enough money to pay the order, so long as there was that amount due the drawer by him, he being bound to pay the amount of said accepted order in any event. The plaintiffs were therefore entitled to their first, second, and third requests. Robbins v. Blodgett, 124 Mass. 279; Grant v. Wood, 12 Gray, 220; Russell v. Barry, 115

Mass. 300. The case shows that the plaintiffs, relying upon said order, and acceptance thereof by the defendant, did furnish lumber to the drawer of the order, and said lumber was used in the construction of the defendant's house. This brings the case within the rule in the case of Cook v. Wofendale, 105 Mass. 401; Taft v. Aylwin, 14 Pick. 336. By receiving the order from Walsh, and its acceptance by the defendant, the plaintiffs acquired an interest in the contract between Walsh and the defendant; and in its execution, therefore, the defendant was bound to use reasonable care for the benefit of the plaintiffs in completing the contract, and it was his duty to follow it. The failure to give the fourth request misled the jury. Jackman v. Bowker, 4 Metc. 235; Robbins v. Blodgett, ubi supra. The plaintiffs, by virtue of their interest in the contract, were entitled to the privilege of completing the building, according to the terms of the contract between Walsh and the defendant, to protect themselves. The plaintiffs, therefore, were entitled to the fifth and sixth requests.

J. F. Cronan, for defendant.

It is a question of law for the court to decide the proper construction and interpretation of the contract, but it is a question of fact for the jury to determine what payment was referred to by the words "to be paid out of the last payment." Eaton v. Smith, 20 Pick. 150; Burnham v. Allen, 1 Gray, 496; Smith v. Faulkner, 12 Gray, 251; Cunningham v. Washburn, 119 Mass. 224.

The evidence admitted against plaintiff's objection was "evidence of the contract between the drawer and drawee of the order, and of the conversation between the parties referred to in it," and was admissible to aid in showing what payment was referred to by the words "to be paid out of the last payment." Proctor v. Hartigan, 139 Mass. 554; S. C. 2 N. E. Rep. 99; Stoops v. Smith, 100 Mass. 63.

No other evidence was admitted, and plaintiff, to maintain his exception, must show there was other evidence. Fuller v. Ruby, 10 Gray, 285, 286.

The order, with the acceptance thereon, was not evidence of an assignment by the drawer to plaintiff of any money due or to become due to the drawer from the drawee, but a contract to pay money out of a particular fund, when that fund became due. Franklin Sav. Inst. v. Reed, 125 Mass. 365; Somers v. Thayer, 115 Mass. 163.

The instructions given were correct, for they only submitted to the jury the question of fact arising under the pleadings. But, if the judge did submit to the jury any question of law, they decided it rightly, and it is no ground of exception. Ricker v. Cutter, 8 Gray, 248; Goodnow v. Davenport, 115 Mass. 568.

The court properly instructed the jury on the issues raised and the evidence offered, and rightly refused to give the instructions asked for by the plaintiff.

BY THE COURT. The defendant did not unconditionally accept the order in the plaintiff's favor. He accepted it "to be paid out of the last payment." These words are ambiguous, and, without some extrinsic explanation, are not intelligible. It was decided, at the former hearing of this case, that evidence of the contract with Walsh, and of the acts and conversation of the parties at the time the acceptance was signed, was competent to aid in the construction of the writing. Proctor v. Hartigan, 139 Mass. 554; S. C. 2 N. E. Rep. 99. The evidence put in by the defendant at the second trial, to which the plaintiff excepted, was therefore admissible.

Upon all the evidence the jury have found that the contract of the parties was that the sum named in the order should be paid out of the last payment to become due to Walsh under his written contract with the defendant; in other words, the acceptance was conditional, and bound the defendant to pay out of such last payment.. It was admitted that Walsh abandoned his work,

and broke his contract, so that the last payment contemplated by the contract. never became due to him. The meaning of the parties was that the order. should be paid out of the sum which should become due to Walsh on the last payment provided for by the contract. It follows that the condition upon which the defendant was to be liable to pay the order to the plaintiffs has not happened, and that he is not liable in this suit.

The instructions requested by the plaintiffs were rightly refused, and those given were appropriate and sufficient. Exceptions overruled.

(44 Ohio St. 604)

NEWBURG PETROLEUM Co. v. WEARE and others.

(Supreme Court of Ohio. January 18, 1887.)

COVENANT RUNNING WITH LAND-SALE OF LAND-LEASE.

On August 20, 1866, W. owned certain oil-producing lands, subject only to the unexpired terms of leases theretofore given by his grantors. The Newburg Petroleum Company, by assignment, owned such leases, and on that day released and quitclaimed to W. all its right, title, and interest in such lands, without any reservation, and it put him into possession. In part consideration for this conveyance, W. covenanted and agreed for himself with the company to pay and deliver to the company, its successors and assigns, upon the leased premises, the one-sixth part of all the oil and other mineral substances produced or pumped thereon or therefrom. daily, as produced during the remainder of the terms granted in the leases. On. September 3, 1866, such conveyance and agreement were duly recorded, and on' that day W. sold and conveyed to sundry parties all his interest in the different parts of such lands, and he put each grantee into possession of the part so conveyed. Thereafter and during the terms of the leases W.'s grantees produced large quantities of oil from the respective parts, but W. and his grantees failed and refused to account to the N. P. Co. for such production, or to pay and deliver the one-sixth part thereof, as W. agreed to do. The N. P. Co. brought its action against W. and his grantees on W.'s agreement with the N. P. Co., and it sought to hold these grantees liable for the covenant of W. To the petition alleging such facts these grantees demurred. Held, such agreement is personal to W., and did not run with the land so as to bind the grantees of W. for his failure to perform such agreement.

(Syllabus by the Court.)

Error to district court, Washington county.

On August 30, 1866, John H. Weare was the grantee of certain oil-producing lands in Washington county, upon which his grantors had given certain unexpired leases under which the oil was thus being obtained, and which leases were thus owned, and work thereunder was being done, by the Newburg Petroleum Company. On that day this company entered into a written contract with Weare, by which the Newburg Petroleum Company agreed to convey to Weare all the company's interest in these lands; and, as part of the consideration for such release, Weare agreed "to pay and deliver to the company, their successors and assigns, upon the premises so released, the one full equal sixth part of all the coal, carbon, or rock-oil, salt, or other mineral substance excavated, produced, or pumped thereon and therefrom, daily, as produced during the rest and residue now remaining of the terms granted in the said above-mentioned leases, respectively." The company, in fulfillment of this agreement, conveyed to Weare all its interest in these premises, without any reservation whatever, and they put Weare into possession of the premises. This conveyance was duly recorded on September 3, 1866; and on that day Weare conveyed, by different deeds, all his interest in the various parts of these same premises to his several co-defendants, and he put such parties into possession of the several parts of the premises so conveyed.

During the terms of these leases these several parties procured large quantities of carbon or rock-oil from these same premises; but neither Weare, nor any of these several co-defendants, paid or delivered to the Newburg Petroleum Company, or any one for them, the one-sixth part, or any part, of such carbon er rock-oil, as by his written contract Weare agreed to do, but, on demand,

each party refused so to do, and each refused to account for any part of the

same.

Thereupon the Newburg Petroleum Company brought suit against Weare and his several grantees to enforce such accounting, payment, and delivery, and to recover in kind or the value of the one-sixth part of such production. Plaintiff propounded certain interrogatories as to the amount and time of such production. Certain questions in the case were disposed of in Newburg Petroleum Co. v. Weare, 27 Ohio St. 343, and the case was remanded to the court of common pleas for further proceedings.

By leave of court, on April 29, 1878, the plaintiff filed its second amended petition, in which it set forth the alleged facts and matters of complaint. On May 6, 1879, a demurrer to the second amended petition was filed by the Exchange Oil Company, one of these co-defendants of Weare. Other pleadings were filed at different times, but they need not be noticed here. At the January term, 1880, this demurrer was sustained, and, at plaintiff's request, leave was given to amend the second amended petition. At the ensuing May term no amendment had been made, but further leave to amend the same was given. At the October (15th) term, 1880, as no further amendment had been made, leave to file an amendment to the same was limited to 60 days. After the expiration of the 60 days, and without further leave of court, an amendment was filed setting up the full performance of this agreement with Weare on the part of the plaintiff; and it also alleged, "that, when the said John H. Weare sold and conveyed the said demised premises to the said defendant, the Exchange Oil Company of Cincinnati, Ohio, it, the said Exchange Oil Company of Cincinnati, Ohio, had actual notice and full knowledge of the plaintiff's right under the said demises, and the agreement with the said John H. Weare, and that the plaintiff was entitled thereunder, as a part of the purchase price of the said transfer, to enter daily upon the demised premises during the remainder of the said terms, and to receive one-sixth of the production of the said petroleum oil in kind; and that it, said Exchange Oil Company of Cincinnati, Ohio, agreed to and with the said John H. Weare to take, and did take, the said demised premises, subject to the plaintiff's right to one-sixth of the production in kind, and to enter upon the premises daily, and receive the same; and it, the said Exchange Oil Company of Cincinnati, Ohio, agreed to and with said John H. Weare, to satisfy the plaintiff's rights and claims by virtue of said demises and agreements, and agreed to take, and did take, the bond and obligation of the said John H. Weare to repay to it any sum that it would have to pay to the plaintiff."

On motion of the Exchange Oil Company, at the January term, 1882, this amendment was stricken from the files, "on the ground that it was irregularly filed, without leave of court." And thereupon the plaintiff moved the court for leave to file the said amendment to its second amended petition, and so ordered to be stricken out for reason of irregularity in filing; and the court overruled and denied the motion, finding there had been no laches to preclude the filing, but denying the motion solely for the reason that all of said amendment, except that portion relating to the agreement of the Exchange Oil Company with John H. Weare, presents no material, substantial allegation in addition to the plaintiff's second amended petition; and for the reason that the part setting out the agreement of the Exchange Oil Company of Cincinnati, Ohio, with John H. Weare, sets out a new and entirely different cause of action, not affecting all the defendants; and the court refused to file the said amendment in whole, or with the allegation of the agreement between the Exchange Oil Company of Cincinnati, Ohio, stricken out; to which ruling and decision the plaintiff excepted. Thereupon the court sustained the demurrer to the second amended petition filed on behalf of all the other defendants except Weare, and gave them judgment against plaintiff for their costs; but the court rendered no judgment for or against Weare, though plaintiff

moved for a judgment against him for failure to answer the interrogatories; to which refusal the plaintiff excepted.

On appeal the district court held substantially the same as the court of common pleas had held; and it refused leave to file the amendment, and it sustained the demurrers of all the defendants except Weare, and rendered judgment for their costs; to which plaintiff excepted, and now seeks a reversal of those judgments.

R. K. Shaw, for plaintiff in error. W. B. Loomis and E. A. Guthrie, for defendants in error.

FOLLETT, J. The original action was upon plaintiff's contract with Weare. Weare did not perform his contract to pay and deliver to plaintiff the onesixth part of all the oil produced or pumped from the premises, and he failed to account for the same, and he refused to do so. Plaintiff claimed that this contract "run with the land," and that Weare and his assigns were bound by the contract; and, to enforce this claim, the Newburg Petroleum Company brought an action against Weare and his assigns, and the company demanded an account of the oil produced, and the delivery of the one-sixth part thereof, or the value of this one-sixth part. Weare's assigns, his co-defendants, claimed that this contract was only a personal agreement of Weare; that it was not a covenant that run with the land; and that it did not bind any one but Weare. The questions presented to us by the record here are the only ones that we can review, and these questions arise upon the second amended petition, and the demurrers thereto of the co-defendants of Weare.

Before considering what is thus presented, we may see if other matters require our examination. There was a contest as to the filing of certain amendments to the second amended petition. It seems that the court of common pleas was liberal in granting leave to file such amendments, yet they were not filed within any leave the court granted. We will not regard these amendments as first presented to the district court, as was the case in Brock v. Bateman, 25 Ohio St. 609, where the court refused leave to file such amendment. Here they were irregularly filed in the court of common pleas without leave of court, and for this reason it was not error reviewable for the court to strike them from the files, especially as the court thereafter considered their merits as allegations in the petition before it refused to permit them to be properly filed. On full consideration, the court refused leave to file this amendment "solely for the reason that all of said amendments, except that petition relating to the agreement of the Exchange Oil Company with John H. Weare, presents no material allegation in addition to the plaintiff's second amended petition; and for the reason that the part setting out the agreement of the Exchange Oil Company of Cincinnati, Ohio, with John H. Weare, sets out a new and entirely different cause of action, not affecting all the defendants." On such an agreement plaintiff could have had a separate action against the Exchange Oil Company. In thus holding we think the court did not abuse its discretion, or deprive plaintiff of any right. "Motions for leave to amend are addressed to the sound discretion of the court, and their refusal will not be held to be erroneous, unless it is affirmatively shown that the discretion was abused." Clark v. Clark, 20 Ohio St. 128.

As to plaintiff's demand for a judgment against Weare as on default for not answering the interrogatories more fully, and the court's refusal to render such a judgment, section 5101 of the Revised Statutes provides: "Answers to interrogatories may be enforced by nonsuit, judgment by default, or by attachment, as the justice of the case may require." From the record of this case, which presents to us the pleadings and the facts, we do not think there is manifest error in the court's exercise of its sound discretion.

As to the plaintiff's action against Weare alone, the case has remained and still is in the court of common pleas, and it may be proceeded with there.