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convey the mail, for the conveyance of which I ance of passengers; and this was one of the the plaintiff in error was the contractor; and objects of the contract. It was
on these it had reference to two circumstances, viz.: one principies the Circuit Court proceeded in the expressed, that the Sydney should be in a coudition to be placed on the route, for which it was known she was preparing; the other, equal- Mr. Justice Barbour delivered the opinion of ly well understood, that the interruption and the court: prevention of the running of the steamboat by This case is brought before us by a writ of the ice in the Potomac, would oblige the con. error to a judgment of the Circuit Court of the tractor to convey the mail by land; in which District of Columbia, for the County of Wash. case, as the boat could no longer be used, the ington. hiring would cease.
It was an action of assumpsit, brought by The evidence offered by the plaintiff in error the defendants in error against the plaintiff in was to explain, not to contradict the written error, to recover a sum claimed for the hire of contract. It was to show what the route for the steamboat Franklin. which the boat was employed was; and that The claim was founded upon a written conthe plaintiff could only use the boat while the tract, concluded between the parties, by the river was navigable. It was to show that after following correspondence: On the 19th of Nothe river was closed, the mail was transported vember, 1831, the plaintiff in error wrote to by land. Such evidence is admissible by the the defendants in error, a note, of which, the rules of law. Cited, 1 Mason's Rep. 10; 4 following is a copy: "I agree to hire the Campbell's Nisi Prius; 8 Term Rep. 379, 382; steamboat Franklin until the Sydney is placed 3 Dall. Rep. 415; 5 Wheat. 326: 8 Johns. Rep. on the route, to commence to-morrow, 20th 116; 19 Johns. Rep. 313; 2 Barn. & Ald. 17; 11 | inst. at ($35) thirty-five dollars per day, clear East, 212; 2 Bos. & Pull. 503; 10 East, 555; of all expenses other than the wages of Cap2 Camp. 627.
tain Nevitt. W. A. Bradley." According to reason and analogous cases, To this note, W. Gunton, as president of there can be no doubt of the propriety and the company, replied on the same day, in the legality of the evidence. We are to look at the following words: "On the part of the Washterms of the contract, and to the usage of the ington, Alexandria, and Georgetown Steam business in which the Franklin was to be em Packet Company, I agree to the terms offered ployed. She was to be used in carrying the by William A. Bradley, Esq., for the *use [*95 mail; and it must have been known that when of the steamboat Franklin, until the Sydney is she could no longer carry the mail she would placed on the route to Potomac Creek, which 94*) not be employed. The prevention *by is thirty-five dollars per day, clear of all ex. causes not within the control of either party penses, other than the wages of Captain Nevitt, would excuse both from the performance of which are to be paid by our company.". the contract.
Upon the trial of the cause, on issue joined, He who hires, is to have the enjoyment and upon the plea of non assumpsit, a bill of ex. use of the thing hired. If the hiring is for a ceptions was taken by the defendant; from specific purpose, the purpose must be accom which it appears that the plaintiffs in the court plished. In this case the hiring was for a pub- below, having given in evidence the correspond. lic, notorious purpose; and it was well known ence already stated, further gave in evidence a and well understood, that on certain events oc-note, signed by William A. Bradley, dated curring, the Franklin would be no longer em- December the 5th, 1831, addressed to Pishey ployed.
Thompson, requesting bim to advise the presiWas it an engagement which was to depend dent and directors of the Steam Packet Com. for its determination solely on the Sydney's pany, that the navigation of the Potomac being being placed on the route. This would have closed by ice, they had that day commenced compelled the plaintiff in error to pay for the carrying the mail by land, under their winter Franklin to the end of time, if the Sydney had arrangement, and had, therefore, no further been burned, or had not been capable of pro- occasion for the steamboat Franklin, which was ceeding on the route. The length to which this then in Alexandria, in charge of Captain position would extend proves its error.
Nevitt; and offering to pay the balance due for Mr. Coxe, for the defendants in error, con the use of the Franklin, on the presentation tended that the engagement to hire the Frank- of a bill, and receipt therefor; and also a letter lin was to continue until the happening of a from W. Gunton, addressed to William A. particular event-until the Sydney should be Bradley, dated the 6th December, 1831, in fit to take her place on the route. The suspen- which, after stating that the letter of the fifth, sion of the performance of the boat could be from Bradley to Thompson, had been submitted but temporary, and this was one of the con- to the board of directors of the company, he tingencies to which the plaintiff in error had informed them that the board could not admit subjected himself by the contract. There is his right to terminate his agreement, on the nothing to distinguish this case from the case grounds which he had stated in his note to where an embargo has interposed to suspend Thompson; and that they regarded it as being the voyage of a ship.
still in full force, and the boat as being in his The evidence was properly excluded. The charge. The plaintiff also proved tłat the contract was express, plain, and simple; and steamboat Sydney was not placed on the route did not require the testimony. No difficulty until 7th of February, 1832; that the Sydney existed as to the meaning of the terms used in belonged to the defendant, and that she was not the agreement. “The route" was well under finished so as to be able to start from Baltistood. It was not a mail route only, but it was more until the 25th of January. And thereused by the plaintiff in error for the convey. I upon, the plaintiffs claimed the hire of the
stoamboat Franklin from the 20th of Novem The court refused to permit the evidence thu: ber, 1831, to the 6th of February, 1832, seventy-offered by the defendant to go to the jury. Ang nine days, at thirty-five dollars per day; al. then, on the motion of the plaintiff's, instructed lowing credit for three hundred and fifty dol- the jury, that if they believed from the evi. lars, paid by the defendant, and leaving a bal. dence that the defendant wrote to the plainance of $2,415.
tiff's the paper of the 19th November, 1831, and It appears from the bill of exceptions, that that the plaintiff accepted the offer, by the after the plaintiff had closed his evidence, the same date, and that plaintiffs and defendant defendant, amongst other things, offered to respectively wrote to each other the papers prove that he for several years had been, and bearing date the 5th and 6th December, 1831, then was, contractor for the transportation of and that the steamboat Sidney did in fact first the mail from Washington to Fredericksburg; arrive in the river Potomac on the 6th Febthat the customary route of said mail was by ruary, 1832, and was placed on the route to Posteamboat from Washington to the Potomac tomac Creek on the 7th of February, 1832, that Creek, thence by land to Fredericksburg, and then the plaintiffs were entitled to recover, unthat passengers were also transported on that der the contract so proved, at the rate of thirroute; that he kept an establishment of horses ty-five dollars per diem, from the 20th of Noand stages, for the transportation of the said vember, 1831, to the 6th of February, 1832, both mail all the way by land from Washington to inclusive. Fredericksburg, at seasons when the navigation The questions then arising upon this record, of steamboats was stopped by ice; and had are: first, whether the court erred in refusing been obliged for a considerable portion of every to permit the evidence offered by the defendant winter, during the time he had been so em to go to the jury. And, second, whether they ployed in the transportation of the mail, to erred in giving the instruction to the jury use his said stages and horses, for the trans- which they did give, at the instance of the portation of the mail, all the way by land to plaintiffs. Fredericksburg, in the mean time laying up *As to the first question. It is a princi- [*97 his steamboat; that just before the date of the ple recognized and acted upon by all courts of .contract, the defendants's own steamboat, justice, as a cardinal rule in the construction of 96*) usually *employed on said route, had all contracts, that the intention of the parties been disabled, and the defendant was at the is to be inquired into; and if not forbidden by time about completing a new boat called the law, is to be effectuated. But the law has laid Sydney, which had been built at Washington down certain rules, declaring by what kind of and sent round to Baltimore for the purpose proof in any given case this intention is to be of being fitted with her engine and other ascertained. equipments; that in January, 1832, the Sydney, Amongst these rules, a leading one in relabeing completely equipped, left Baltimore for tion to written contracts, to which class the one Washington, as soon as the state of the ice in question belongs, is this: That extrinsic evimade it practicable to attempt the voyage, was dence is not admissible to explain a patent amstopped by ice, and obliged to put in at Ann- biguity; that is, one apparent on the face of apolis, whence she proceeded to Washington as the instrument: but that it is admissible to soon as the ice left it practicable; arrived at explain a latent ambiguity; that is, one not Washington on the 6th of February, 1832, and apparent on the face of the instrument, but was on the next day placed by defendant on one arising from extrinsic evidence; for this is the route; that on the 5th of December, 1831, but to remove the ambiguity by the same kind Captain Nevitt, the commander of the Frank- of evidence as that by which it is created. The lin, refused to go on the said route of the de- rule thus stated seems to be in itself quite fendant, in consequence of the ice then forming plain and intelligible, and yet much difficulty in the river, unless he was directed to do so by has arisen in its application. The illustration the plaintiffs; that upon application to the presi- most usually given of the operation of this rule dent of the company, he directed the captain in the admission of extrinsic evidence, is that to proceed as required, and obey the orders of of a description of a devisee, or of an estate, the defendant; that the captain did then pro- in a will, where it turns out that there are ceed on the route, and returned as far as Alex- two persons, or two estates, of the same name andria, where he stopped, and sent up the mail and description. These, however, are put, not by land, and although required by defendant's as measuring the extent of the rule, but as agent, refused to come up to Washington with exemplifying its application; and all other the said boat, in consequence of the ice which cases within the scope of the principle are, in had formed in the river; and that the said boat like manner, open to explanation by the same lay at Alexandria, frozen up in the harbor, kind of evidence. from that time to the 5th of February, 1832; Accordingly it is laid down, in a very accuthat it was matter of notoriety, and known to rate writer on the subject of evidence (3 Star. and understood by the plaintiffs, at the time kie, 1021), that extrinsic parol evidence is adthe contract in question was made, that as missible to give effect to a written instruinent, soon as the navigation should be closed by the by applying it to its proper subject matter. ice, the United States mail from Washington
Let us examine some of the many cases to Fredericksburg would have to be transported which have been decided upon the subject of the all the way by land carriage, instead of being admissibility of this evidence, in relation to transported by steamboat to Potomac Creek, written instruments. and thence by land to Fredericksburg; and In the first place, wherever there is a doubt that the steamboat Franklin would not be re as to the extent of the subject devised by will, quired by defendant, and could not be used or demised, or sold, it is matter of extrinsic under said contract, when the navigation evidence to show what is included under the should be closed.
description, as parcel of it. Accordingly, in 1
Term Rep. 701, Buller, Judge, said, whether Wash. Rep. 56, it is said, that, to discover the parcel or not, of the thing demised, is always intention of a testator, parol evidence may be matter of evidence. So where a grantor in a admitted of his circumstances, situation, condeed described the premises, as the farm on nection with the legatees, and his transactions which he then dwelt, this was held to be a lat. between the making of his will and his death. ent ambiguity, which might be explained by And this same doctrine is advanced by the evidence aliunde; and evidence was admitted, same court, in 3 Hen. & Mun. 283. that a particular piece of land, claimed under We will close this reference to cases with the deed, was at the time of the grant in a that of The Mechanics' Bank v. The Bank of state of nature, uninclosed, and separate from Columbia, 5 Wheat. 326. In that case, it was the rest of the farm, and that the grantor re- held by this court, that where a check was mained in possession, and occupied it as his drawn by a person who was the cashier of an own till his death-to show that it was not incorporated bank, and it appeared doubtful within the grant. 4 Day's Rep. 265.
upon the face of the instrument whether it In 8 Johns. 116, the case was this: A, by a was an official or a private act, parol evidence written contract, agreed to receive of B sixty was admissible to show that it was an official shares on the Hudson Bank, on which ten dol. act; and accordingly, many facts and circumlars per share had been paid, and to deliver stances were given in evidence to prove in what B his note for $667, and pay him the balance character it was drawn. in cash, and also to pay five per cent. advance. *The cases which we have thus collect- (*99 It was decided that this was a case of latent ed together from amongst the very many which ambiguity, and the nominal value of each share exist, will serve to show in how many aspects 98"] being fifty dollars, parol *evidence was the question of the admissibility of extrinsic admitted, to show whether the five per cent. evidence in relation to written contracts has advance was to be paid on the sum paid in, been presented and decided; and in how many only, or on the nominal amount.
forms, according to the various circumstances In 2 Leigh, 630, the principle is laid down by of the cases, the principle which we have been the court, that parol evidence is not admissible considering has been applied. Sometimes it to vary, contradict, add to, or explain a written has been applied to deeds, sometimes to wills, agreement; but in cases of equivocal written and sometimes to mercantile and other con. agreements, the circumstances under which tracts. In some cases it has been resorted to to they were made may be given in evidence to ascertain which of several persons was intend. explain their meaning. In the case of Birch v. ed; in others, which of several estates. In Depeyster, 1 Starkie's Cases, 210, the charter- some, to ascertain the identity of the subject; party stipulated that the captain should receive in others, its extent. In some, to ascertain å specific sum, in lieu of privilege and primage, the meaning of a term, where it had acquired and the question was, whether the terms of the by use a particular meaning; in others, to contract excluded all right on the part of the ascertain in what sense it was used, where it captain to use the cabin for the carriage of admitted of several meanings. But in all the goods, on his own account. Gibbs, Chief Jus purpose was the same. To ascertain by this tice, said: Evidence may be received to show medium of proof the intention of the parties, the sense in which the mercantile part of the where, without the aid of such evidence that nation use the term "privilege,” just as you could not be done; so as to give a just interprewould look into a dictionary to ascertain the station to the contract. meaning of a word; and it must be taken to be Without attempting to do what others have used by the parties in its mercantile and es- said that they were unable to accomplish-that tablished sense.
is, to reconcile all the decisions on the sub ect So where a charter party stipulated that a --we think that we may lay down this prinfreighter should pay a certain sum per pound, ciple as the just result. That in giving effect etc., British weight, it was held, that as the to a written contract, by applying it to its word "weight" had two meanings, gross and proper subject matter, extrinsic evidence may net, this was such a latent ambiguity as to be admitted to prove the circumstances under warrant the introduction of parol testimony. which it was made; whenever, without the aid I Nott and M'Cord, 45.
of such evidence, such application could not be In the case of Peish v. Dickson, 1 Mason's made in the particular case. Rep. 11, it is said by the judge, that if by a With this principle in view, we proceed to written contract, a party were to assign his inquire whether the evidence offered by the defreight in a particular ship, it seemed to him fendant, in this case, ought to have been rethat parol evidence might be admitted of the ceived by the court. circumstances under which the contract was Now, had the evidence been received, it would made, to ascertain whether it referred to goods have disclosed the following state of facts: on board the ship, or an interest in the earn- That the route mentioned in the contract was ings of the ship; or in other words, to show in one on which the plaintiff in error transported what sense the parties intended to use the term. passengers, and also the mail; that the steam
Nor is this principle at all confined to mer. boat Sydney, mentioned in the contract, was cantile contracts; for in Robertson v. French, 4 designed to perform this service; and that the East, 130, Lord Ellenborough, speaking on this Franklin was wanted for the same purpose; subject, said that the same rule which applied that the Sidney was then at Baltimore, for the to all other instruments, applied also to a pol. purpose of being fitted with her engine and icy of insurance. The admission of this kind of equipments; that although the transportation proof has been carried to a great extent, too, of passengers and the mail was carried on, by with a view to a correct construction of wills. the plaintiff in error, in a steamboat, whilst the In the case of Shelton's Executors v, Shelton, 1 river was open; yet, when the river was closed
by ice, so that navigation was obstructed, the tion of the parties, to be derived from the plaintiff in error then transported passengers written contract and the parol evidence taken and the mail all the way over land to Freder together, was, a hiring and letting to hire, icksburg; that when the river was thus ob- for so long a time as the boat could be used, structed, the plaintiff in error could not, and that is, until the navigation was obstructed; did not, use a steamboat; and that all these subject to being terminated at any previous facts were known to the defendants in error. time, when the Sydney was ready to take her
We think that this evidence ought to have place. We think that the rule of law, which been received, because it would have tended to admits extrinsic evidence for the purpose of show, by the circumstances under which the applying a written contract to its subject mat. contract was made, what was the intention of ter, justifies its admission, beyond the mere deg. the parties; and, in the larguage of the rule ignation of the thing, or corpus, if we may so which we have laid down, that the contract, express it, on which the contract operates, and without its aid, could not be applied to its prop- extends so far as to embrace the circumstances er subject matter.
which accompany the transaction; when, with. The terms used in the written contract are, out the *aid of those circumstances, the (* 101 100*] “for the use of the steamboat Frank written contract could not be applied to its lin, until the Sydney is placed on the route to proper subject matter. Potomac Creek.” It is contended that this This principle is illustrated by the cases amounted to a stipulation to keep the Franklin which we have before referred to. Take, for in use until the Sydney was placed on the example, the case cited from 1 Mason, 11. That route; no matter what length of time may was assumpsit for a balance alleged to be duo have elapsed before that was done. Suppose on consignments. In that case, parol evidence that the Sydney had been accidentally con was received of the circumstances under which sumed by fire the day after the hiring of the a contract was made, which contained this Franklin, the effect of this construction would clause relating to the plaintiff's goods, viz., be, to make that hiring co-extensive in point of "On which goods Mr. D. (the defendant in the time with the existence of the Franklin, in a case) has advanced me $5,833, for which condition for use; although it is obvious that amount he will hold for re-imbursement, on the a temporary hiring only was in the contempla amount and net proceeds of the sales of said tion of the parties. Again, suppose the plain- goods, which are only considered answerablo tiff in error had sold the Sydney, and bought for said amount advanced, as per our agree. another boat, and put that other on the route; ment;" for the purpose of showing, whether it the construction contended for would lead to was intended to waive any personal claim on the result, that the hire of the Franklin would the plaintiff, and to restrict the defendant's still have continued to have gone on, indefinite- security for the repayment of the advance, to ly. If this were so, it must be upon the prin- the goods only; or was meant merely to ex. ciple that it entered into the contemplation of empt the goods of the shippers, on freight, from the parties, as a material term of the contract, being included as a security for the advance on that the plaintiff in error should keep the the plaintiff's goods. Franklin in use, not until he ceased to want So we have seen, in the case from 2 Leigh, it by having a steamboat to take its place, but 630, the proposition is stated in terms, that in until the identical steamboat Sydney, and no equivocal written agreements the circumstances other, should take its place. We think that under which they were made may be given in the evidence offered, and rejected by the court, evidence, to explain their meaning; and, acwould have shown why reference was made to cordingly, in that case, the judges rely upon the Sydney being placed on the route; that is, the circumstances as disclosed by the parol because she was expected to be ready for use in evidence, in connection with a written promise a very short time. It would have shown fur- of indemnity, in deciding on its legal effect. ther, that the defendants in error knew the We could suggest many cases which we think service for which their boat was wanted; what would illustrate this principle, and prove, that was the nature of that service; that whenever from the necessity of the case, and coasistently the river was obstructed by ice, the Franklin with the rules of law, the circumstances under would not be wanted, because it could not be which a written contract is made must be open used, and because then another mode of trans- to proof by extrinsic evidence, in order to asportation was resorted to. From all this it certain the intention of the parties, and thus would have been competent to infer, that the correctly interpret it. Suppose that during the words "until the Sydney is placed on the route," late war, a person had been engaged, by conwere not intended to fix that time as the period tract, to transport munitions of war to the to which the hiring was to continue, at all army; that, for that purpose, he had hired a events, and under all circumstances; but as steamboat of another, and had signed a writbeing referred to, because the Sydney was then ten agreement, by which he engaged to take expected to be ready for use in a very short good care of the boat; suppose that, whilst he time; and so soon as she could be used, the was engaged in this transportation, the boat Franklin would not be wanted, even although had been destroyed by the eneray, as it might there should be no obstruction to navigation rightfully have been by reason of the hostile by ice. And, moreover, it would have been character impressed upon it; that, thereupon, competent to infer, that as the defendants a suit had been brought by the person who let knew why the Franklin was wanted; for what it to hire, upon the stipulation to take good service she was wanted; the character of that care of the boat. Can it be doubted that it service, that is, that it would cease when she would have been competent for the defendant could not be used, by reason of the river being to have proven that he was a contractor with closed with ice; that, therefore, the real inten-1 the government to transport munitions of war;
that he had hired the boat for that express the written contract to its proper subject mat. purpose; and that these facts were known to ter. Accordingly, Mr. Starkie, in his book on the other party, so as to show the intention evidence, 1033, states that to be the reason why and understanding of the parties as to the kind evidence is admissible to prove the special and of danger to which the boat would unavoidably peculiar sense in which a word is understood. be exposed, in performing the very service for *Now, let us take a case to exemplify (*108 which it was hired.
the second branch of the rule, as to annexing We will state only one case more, founded on customary incidents. The case of Senior v. the suggestion of Mr. Chief Justice Ellsworth, Armitage will illustrate the second branch of in a note to 3 Dallas, 421. Suppose a man this rule, that of the admission of parol evi. 102') *signs a written agreement in these dence, to annex customary incidents. In that words, viz., “ I will take your ship John.” May case it was held, that a custom for an away. not the party, as the Chief Justice asked, go going tenant to provide work and labor, tillage beyond the note, to explain, by existing circum. and sowing, and all materials for the same, in stances, the meaning of the word “take;" his awaygoing year, the landlord making him a which, accordingly as the circumstances might reasonable compensation, is not excluded by an be one way or another, might equally embrace express written agreement between the landa purchase or a charter-party?
lord and tenant, which is consistent with such a All the cases which we have cited, in which custom. Now, here proof of the custom was extrinsic evidence has been received, and those considered as necessary to apply the contract which we have supposed, in which we think to its proper subject matter. So in the two that it would be admissible, proceed on one cases which we have supposed of the steamboat, principle only, and can only be justified upon and the ship; we think the extrinsic evidence that principle. And that is this: that the rule which we have mentioned would be admissible, which admits extrinsic evidence, for the pur. because the question would not bave been the pose of applying a written contract to its prop- meaning of the stipulation to take proper caro er subject matter, extends beyond the mere des- of the boat, in the one case, and to take the ignation of the thing on which the contract ship in the other, in the general sense of these operates; and embraces within its scope the cir- expressions, but what was the meaning of cumstances under which the contract concern proper care, as to that steamboat, and of the ing that thing was made; when, without the word “take,” as to that ship, under the cir. aid of such extrinsic evidence, such application cumstances which attended the respective conof the written contract to its proper subject tracts concerning them: neither a steamboat in matter could not be made. Hence, Mr. Starkie, the one case, nor a ship in the other, was the in his third volume on evidence, 1021, after proper subject matter of the contract, but each having laid down the principle that extrinsic of them, in connection, with its accompanying parol evidence is admissible to give effect to a circumstances; in other words, that steamboat, written instrument, by applying it to its proper under the circumstances under which it was subject matter, adds, "and also as ancillary to hired; and that ship, under the circumstances the latter object (that is, the application to its under which it was taken. proper subject matter), for the purpose, in some And so in the case before us, upon the same instances, of explaining expressions used in a principle, the subject matter of the contract peculiar sense, and of annexing customary in was not merely_the steamboat Franklin, but cidents,” etc.
the steamboat Franklin under the circumLet us take a case under each branch of this stances under which it was hired. The parol rule; and by this exemplification, we shall more evidence, then, in this case, was admissible; clearly see the operation of the rule itself, and because without its aid, the written contract the very decided bearing which it has upon this could not be applied to its proper subject matcase. Then as to the first branch, as to parolter; and, therefore, it was proper to prove the evidence for the purpose of explaining expres circumstances attending the transaction. Hav. sions used in a peculiar sense. Let us take the ing thus stated our opinion to be, that evidence case before cited, where the question was as to ought to have been received to prove the facts the legal effect of a written contract, to receive stated in the bill of exceptions on the part of a stipulated sum in lieu of privilege and prim. the defendants, it follows as a consequence that age; in other words, what was the meaning of the court below erred in giving to the jury the these terms: Parol evidence was received to instruction which they did give, at the instance show the sense in which the mercantile part of of the plaintiffs in the Circuit Court. the nation used the word "privilege;" and why? We think, therefore, that the judgment is er. Because, the real question was not what was roneous, and must be reversed with costs. And the meaning of the word “privilege” in general; a venire facias de novo is awarded; with inif that had been the question, it would have structions, that upon the next trial, the court been a patent ambiguity, and parol evidence shall receive parol evidence to prove the facts would have been clearly inadmissible: but the stated in the bill of exceptions, to have been real question was, what was the meaning of the offered to be proved by the defendant, at the word "privilege,” as used in that contract; it former trial: except the fact of the communi. being a word which had acquired in the mercantile world a peculiar meaning, that meaning cation made to the plaintiff, by the defendant must be inquired into, by parol evidence, to get or his agent, before the time of making the con at the intention of the parties, as it was a tract, that the defendant intended to keep the mercantile contract. Thus, it will be seen that steamboat Franklin in use under the contract, it was necessary to go into the mercantile sense 80 long as the navigation remained open, of the word, that being the sense in which it and no longer; and with the further instruction was used in the case stated; in order to apply I to the court, not to give the jury the instruo