majority">Leonard, Judge,

delivered the opinion of the court.

The main question is as to the proper construction of the articles of agreement upon which the first and second counts of the last amended petition were founded. It is supposed, on one side, that this instrument created a personal obligation against Morrison, not only to grant a lease on the pork-house to Clarkson when it should be erected, but also to cause it to be erected as prescribed in the articles; while, on the other side, it is insisted that the obligation to ereet the building was exclusively upon Collins ; to enable him to do which, money was ■ to be advanced to him by both Morrison and Clarkson ; and that the only obligation upon Morrison was to make the lease when the building should be erected, and to accept Clarkson’s advance of a thousand dollars to Collins as a payment of the' first half year’s rent.

To enable us to put a proper construction upon this agreement, we ought to be made acquainted with the circumstances that surrounded the parties at the time it was entered into ; but-the only light we have on the subject is what is disclosed by the instrument itself. Judging from the written articles, we should infer that Collins was the real owner of the leasehold interest upon which the pork-house was to be erected, and that he was indebted to Morrison, who held this and other property belonging to Collins in trust to secure that indebtedness ; that these two parties — Collins and Morrison — were desirous of *139making this property productive — the former as owner, and the latter as a lien creditor — -and that Clarkson desired to secure the use of the house as soon as it should be erected, in order to carry on his business in it. The words of the'instrument do not impart an obligation on the part of Morrison to have the building erected ; but Collins expressly binds himself to do this, and, to enable him to do so, each of the other two parties — ■ Morrison and Clarkson — expressly oblige themselves to make certain advances of money to him; and the only express undertaking in the instrument on the part of Morrison in favor of Clarkson, is to grant him a lease of the building as soon as it should be erected, and to allow the thousand dollars advanced by Clarkson to Collins to go in extinguishment of the first half year’s rent to become due upon the lease. It is argued, however, that Morrison was the real owner of the building to be erected, and that Collins was only interested in it as the contractor for its erection, and that therefore the contract, as between Morrison and Clarkson, ought to be construed as importing not only what was expressly agreed between them, but also that the building should be erected as provided in the agreement, so as to make Morrison liable for all the damages occasioned by the non-completion of the building. We think, however, that the ground here suggested for putting a construction upon these articles, not only not called for by the words of the agreement, but contrary to the apparent meaning of them, has no existence in fact, so far as we are able to judge from the recitals and stipulations of the contract; and that instead of Morrison being the real beneficial owner of the leasehold interest in the lot on which the building -was to be erected, it belonged, as before suggested, to Collins, who was interested in the proposed building as owner, and not as a building contractor ; and that Morrison’s interest in the premises was only as the creditor of Collins, having a lien upon the property for the security of his debt. But whether we be correct or not in these conclusions as to the relations of the parties to the property, we are satisfied that the words of the instrument, considered by *140themselves, will not bear the construction the plaintiff seeks to put on them, and that we are not authorized by the surrounding circumstances, so far as they are disclosed by the articles of agreement, to give them any other than their grammatical construction. The result is that upon the written agreement the plaintiff is not entitled to recover for the non-completion of the house, nor can he treat the thousand dollars, advanced by him to Collins, as money advanced under the agreement upon the credit of Morrison. The demurrer to the first and second counts we think therefore was well taken.

It only remains to consider the propriety of striking out the third and fourth counts, filed under a general leave to amend, on the ground that they brought into the record new causes of action not embraced in the original petition. In this particular we think the court erred. The original and first amended petitions are very inartificially drawn, but enough is shown to warrant the filing of the third and fourth counts. The third count is upon an oral promise of Morrison for the completion of the building, and the fourth count for money expended by Clark-son for Morrison. Both the original and the first amended petitions allege an oral promise on the part of Morrison to complete the building, and also contain an allegation of the expenditure of money upon the building by the plaintiff with the assent of Morrison. These matters, as before suggested, are very imperfectly stated, but enough is stated, in our opinion, to authorize the amendments made in the third and fourth counts. We do not know that this will avail the plaintiff any thing under ' the opinion now expressed in reference to the construction of the written agreement, but if the plaintiff have a right of recovery independent of the written contract, as is alleged in these counts, we should be unwilling to deny him redress on account of the imperfect manner in which his cause of action was originally stated.

Let the judgment be reversed and the cause remanded.

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