STONE, J.
-John A. Hill, the appellant, on 1st December, *2901878, contracted in writing with Jasper Dillard to sell him a steam saw and grist mill, known as the Allen mill, with certain appurtenances — all being personal property. Dillard was to pay for. the property $1275 in lumber at seventy-five cents per hundred, in monthly installments, running through two years ; being about 7,000 feet of lumber per month. The writing contains this clause : “ If any one of these payments fails to be met promptly, then I, Jasper Dillard, forfeit all former payments that may have been made to said Iiill, and on his demand, bind myself to give into his possession the mill with all the additions thereto, in good running [order], with all obtained from him.” The written contract by some means became mutilated, and some of -its provisions can not be learned. There 'is a failure of proof as to what they were. There is testimony tending to show that Townsend was interested with Dillard in ■making the purchase, though his name does not appear in the writings. The testimony was in conflict, whether Hill, when he made the sale, knew that Townsend was interested with Dillard in making the purchase. From the time of the 'purchase, the business was conducted by Dillard and Townsend jointly.
In August, 1879, Dillard and Townsend had made some payments of the purchase-money, but were in arrears several monthly installments, probably as many as three or four. Hill had not, and did not then claim the forfeiture provided for in 'the written contract with Dillard. A renewed contract was then entered into between Hill,a the seller, and Townsend and Dillard, and one Eubanks, as purchasers. The terms of this contract were agreed on, August 19th, and were to be executed in writing on the 20th. Hill, the seller, did not attend at the designated place on the 20th, but subsequently presented a writing, claimed by him to express the terms of the contract, but which the purchasers refused to sign, on the alleged ground that it did not truly express the agreed terms. No writing was ever signed, expressing the terms of the contract of August 19th, 1879. The price and installments of the second contract were the same as those of the first; that is, the entire payment "was to be completed December 1st, 1880. One of the terms •of the agreement of August, 1879, was, that Eubanks was to -pay Hill 35,000 feet of the lumber promised ; which payment llie made. This paid all installments to mature up to December 1st, 1879. The business was carried on by Townsend, Dillard and Eubanks, until Dillard sold out to his associates. It was then conducted in the names of Townsend and Eubanks, until this suit was brought in April, 1880. No payments were made of the purchase-money, after the payment made by Eu-banks when he came in. This action for the recovery of chattels in specie, was brought upon an alleged forfeiture, under *291the terms of the contract. There is irreconcilable conflict in the testimony as to what were the terms of the contract made-in August, when Eubanks became part purchaser, and Townsend became a recognized purchaser. The points of difference are as follows: Hill contended that it was part of the agreement that it should contain thg forfeiture clause copied above, and he so framed the contract; that is, “ If any one of these payments fails to be met,” etc. Another clause inserted in the writing was, that the mill should not be removed from the place where it was then situated. The defendants denied that ■either of these clauses was in the agreement made; and there was testimony tending to show that Townsend was ignorant that the forfeiture clause was in the contract of December, 1878, until April, 1879, and that he objected to it. The insertion of the two clauses stated above were the reasons assigned by the purchasers for refusing to execute the written contract presented by Hill. The purchasers also gave testimony to show that it was one of the terms of the contract of August, 1879, that they were to have certain timber privileges on lands near the mill, and that they failed to obtain this right and privilege, because Hill had previously disposed of it to another. So, Hill’s right of action was necessarily based on the assertion that the contract of August, 1879, contained a forfeiture stipulation similar to that in the contract of December, 1878, and that defendants had incurred the forfeiture by defaults in paying installments. The defense took different forms: First, that there was no forfeiture clause in the contract of August, 1879; second, if there was such forfeiture clause, Hill had waived it; third, that Hill had violated his part of the contract, in this, that he had put it out of his power to furnish, and failed to furnish to the purchasers the timber privileges he had contracted to furnish them.
When the contract of purchase was made, December 1st, 1878, the property purchased consisted of a saw and grist mill, six belts, some blacksmith’s tools, one burned saw mill, two blue kuln stones, two pair mill rocks, lying outside of the mill, a lot of old irons, a cast iron roller, cast tires, and two boilers. There was afterwards added, or put at the mill by the defendants, two pairs of oxen, two log-carts, one wood-wagon and gearing frame and hopper. The suit was for all the articles enumerated; those afterwards purchased, as well as those on hand when the first contract of sale was agreed on. All the exceptions taken and errors assigned, are based on the charges given and refused.
We can not agree that articles purchased to aid in operating the mill can be classed as “ additions thereto,” unless they were in fact added to the mill. The language of the written con*292tractf forbids this interpretation. The promise is, in the contingency provided for, “to give into his [ITill’s] possession the mill with all the additions thereto.” Additions to what ? Certainly to the mill. And these were to be delivered “in good running order.” Now, it would be a strange use of language, if the intention was to embrace pxen, carts and a wagon. A stipulation that they should be in good nmnmg order, would certainly be unusual. But the argument is stronger than this. There is the superadded clause, “ with all obtained from him.” Why add this clause, if the “ mill with all the additions thereto” included detached personal property, employed as agencies in operating the mill. If oxen and carts are additions, why are not all the other ai’ticles purchased from Hill equally parts of the mill ?
Another preliminary remark. The testimony given for defendants tends to show that one of the stipulations of the contract of August, 1879, was, that the purchasers were to have certain timber privileges, which they failed to obtain. If this be true, then there was. a breach of the contract by Hill. True,' that may not have been a term of the contract, or there may have been no breach of it. Still, it serves to show- the case was presented to the jury in two very variant phases. This presented a question for decision by the jury, and it could not be known or affirmed which phase they would find to be the true one. In such case, each party is justified in having the jury instructed as to the law, as it would arise if his hypothesis be the true one. Of course, such charge must properly refer to the jury the finding of the facts, and the application of the law must be made contingent on the ascertainment of the facts embraced in the hypothesis. — 1 Brick. Dig. 336 to 339, §§ 15, 42, 49, 51, 54.
The City Court committed no error in giving charges numbered 3, 8, 10 and 12. They assert plain principles of law. Charges 4 and 5 are substantially alike. The contract of August contained the term that Hill was to furnish the purchasers certain timber privileges, and if he failed to do so, then he had violated his contract, and he should not recover. The charges given were justified by one phase of the testimony, and the court did not err in giving them. If they were too general, obscure, or had a tendency to mislead, the party objecting should have asked a more specific or explanatory charge. — 1 Brick. Dig. 336, § 10. What we have said above shows that the court aid not err in giving charge 7. Even if that charge be obnoxious to the criticism, that it referred it to the jury to construe a written contract, this did the appellant no injury. The court should have construed the instrument against the views of the appellant, and the jury could have done nothing more. — 1 Brick. Dig. 387, §§ 26, 27.
*293The hill of exceptions asserts that it contains substantially all the evidence, and that on this evidence the charge of the court was given. The testimony shows the purchasers committed some defaults in the payment of installments, before August, 1879. All these defaults and forfeitures were waived by Hill, when he agreed to the terms of the contract- of August, 1879, and received from Eubanks payment of all past due installments. He also, according to the testimony, received payment of all installments to mature up to December, 1879. There could, therefore, he no default or forfeiture until after that time. No payments were made after the-August payment by Eubanks. This suit was commenced, April 20th, 1880, when there had been a failure to pay ■ some four monthly installments. One of the three forms in which the defense was attempted to be made, was that Hill had waived these alleged grounds of forfeiture. The only evidence of waiver is what is shown above. As we understand charge 11, it instructed the jury that they might look to the waiver of these former grounds of forfeiture as a circumstance to be weighed in determining whether there had not'been a waiver as to all the grounds. The charge as found in the record is worse than this. It asserts that the purchaser could waive these forfeitures — and states “if four such forfeitures, etc., occur in succession, and the purchaser fails to claim and enforce either of said forfeitures,” then the jury may look at these facts in connection with all the other evidence, for the purpose of determining whether the plaintiff had waived all of said forfeitures. We attempt to give the substance, not the entire language of the charge. The insertion of the word purchaser, when it should have been seller, may be an error in copying. But if the word seller was substituted, the charge can not be maintained. The waiver of ■one or more forfeitures or defaults is not a circumstance tending to show a waiver of later defaults. Most well disposed persons would be disinclined to resort to harsh or extreme measures on a first default. There might be excusing or palliating circumstances, and humane vendors would feel inclined to give to purchasers another trial. To convert such indulgence'or forbearance into an instrument of offense, would be to attach a penalty to what is usually an instinct of kindness, or an aversion to a hasty resort to legal remedies. — 1 Brick. Dig. 396, §§ 274-5. In this single ruling the City Court erred.
The charges asked by plaintiff were rightly refused. The law will not imply conditions in such contracts, and make them grounds of forfeiture. They must be expressed. — 2 Pars, on •Contracts, Ed. of 1864, 526.
Reversed and remanded.