¶1The difficulties of this case arise out of the complication of the facts and the want of order and clearness of statement in the bill of exceptions.
¶2The contract between the United States and Tetlow was rightly admitted to show the state of facts existing when the subsequent oral contracts were made, and thus assist in ascertaining what those contracts were.
¶3The instructions requested by the defendant were rightly refused. So far as they had any legal foundation, they were included in the instructions given.
¶4The question whether the plaintiffs had the lien which they now assert for work done upon the engines while in their possession was not tried in the action of replevin brought by Wright against Tetlow and Souther. These plaintiffs were not a party to that action. The judgment therein was not therefore compe*216tent evidence against them, unless some person authorized to represent them appeared therein in their behalf; which has been negatived by the jury under correct and sufficient instructions. The fact that Souther was president and general agent of the corporation was not conclusive evidence that he was authorized to bind the corporation in this respect.
¶5The fact that Tetlow, by a writ of replevin against Bayley, obtained possession of the property, and afterwards recovered judgment on that writ, was admissible as primá facie evidence to show the right of Tetlow. But that judgment was not competent to prove title against the present defendant, who was not a party to the action.
¶6It was rightly ruled that the construction and effect of the oral contract made by this defendant with Hepworth & Carr were to be determined by the court. Where a contract is oral, the question what the contract is must, if controverted, be tried by the jury as a question of fact; but where the terms of a contract are undisputed, its construction and effect, where the contract is oral as well as where it is written, are to be determined by the court. Rice v. Dwight Manufacturing Co. 2 Cush. 80. Short v. Woodward, 13 Gray, 96. Pratt v. Langdon, 12 Allen, 544.
¶7But we are of opinion that this contract, while it permitted Hepworth & Carr, the mortgagors, themselves to go on and finish the engines, did not give them a lien, as against the mortgagee, for work done by them thereon, nor authorize them, or those having their rights, to employ any other party to work thereon in such a manner as to create a lien for such work. In order to constitute such a lien, the work must be done under agreement with the owner of the property, or with some one authorized by him to make such an agreement. Hollingsworth v. Dow, 19 Pick. 228. The ruling of the superior court was therefore erroneous in this respect, assuming the mortgage to be valid; and the question whether the evidence offered by the plaintiffs to impeach it was rightly rejected is not before us on the defendant’s exceptions. . Exceptions sustained.