The opinion of the Court was delivered by
On the trial it became the duty of the Circuit Judge to place a construction upon a deed, material to the issue between the parties. The counsel for the plaintiffs required the construction of the deed by the Court, advancing certain propositions as controlling such construction. The Circuit Judge declined to give any construction to the deed, and states the ground of such declination as follows: “ I refuse so to charge, that is, I refused to give construction to the deed of 1852, it being doubtful on its face, and having to be explained by testimony. I left it to the jury to say from the testimony what the parties intended it to be.”
It is unnecessary to consider the merits of the propositions of law embraced in the request to charge, as they are neither affirmed nor denied by the charge, and therefore cannot be regarded as having had an influence upon the verdict.
The submission to the jury of the whole question of the construction of the instrument, as depending upon parol testimony of what the parties said and did in regard to the subject-matter of the deed, was clearly erroneous.
The judgment and verdict should be set aside and a new trial ordered.