majority">Osbey, J.

We think this cause should he reversed because of the error of the court below in sustaining the plaintiff’s exceptions to the answer and amended answers of defendant. The instrument sued on is without date, and in other respects vague and uncertain ; and it was most certainly the right of either party, under proper pleadings, to have the instrument explained, or at least to be made certain by evidence outside of the instrument itself. It is claimed by appellant that on the face of the instrument it is not absolutely certain what suit Jones & Rivers had attended to, and were “still to continue to do so;” that the land referred to in the written instrument could not 'be determined without extrinsic explanatory evidence, and that there is no consideration for the agreement on the part of E. W. Perry, unless extrinsic evidence be admitted to show that the professional services of Jones & Rivers were the consideration, and that then it would be necessary to have explanatory evidence to show definitely what amount of professional services were intended by the contracting parties to be a full consideration for the one-fourth of the league of land.

There is another important question raised by the appellant’s amended answer, which was stricken out by the rulings on the *282demurrer. The appellant, in his petition below, claims that by the decision of the Supreme Court in 1851, the title to said league of land was wholly cleared from all claims of the Hibben heirs, and that then “the.said Jones & Rivers became absolutely entitled to the one equal undivided fourth of said league.” If, , therefore, Jones & Rivers, in 1851, became the owners of one undivided fourth of the land, then they would from that time become liable for a proportionate amount of all necessary cost and expenses in defending the title, possession and care of the whole league until a partition was had. The defendant below claimed that his intestate had necessarily expended a large amount of money after 1851, in getting and maintaining possession of the league of land, that he might protect the title to the same; and yet the court struck out this portion of the answer on demurrer. We consider the ruling in this respect erroneous, for if appellant or his assignors were the owners, or “ were absolutely entitled to one fourth of the league,” then they or he should be held responsible for all necessary expense in protecting it.

The defendant below also claimed that Jones & Rivers had failed to perform their portion of the original contract, and that therefore their assignee could not insist upon a specific performance. We think this a question of fact, which should have been submitted to a jury, or to the court acting in the stead of a jury. And without expressing any opinion in relation to the merits of this cause, yet we think substantial justice would more likely be obtained by an investigation' of the facts in relation to the real intent of the instrument sued on, and the respective rights and liabilities of the parties since the execution of that .instrument.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.

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