¶1The plaintiff has brought an action of assumpsit for work done by him on the bottom of the brig Jerome, below her wales. A written contract had been made between the parties, in which it was agreed, by the defendant, the owner of the brig, that on the performance of certain repairs upon her upper-works, which the plaintiff con*464tracted to do, he should become the owner of one third part of her. The judge charged the jury, that the repairs made on the bottom of the vessel, below the wales, were not included in the written contract; and if such repairs were made under the authority, and by request, of the defendant; that the plaintiff was entitled to a reasonable compensation. To review the propriety of this charge, is the object of the present motion.
¶2The sole controversy between the parties, depends on the solution of the question, Whether, by the written contract alluded to, the plaintiff contracted to repair the bottom of the brig below her wales. If he did, he agreed to take his compensation, in a conveyance of one third of her; but if he did not thus contract, the charge of the judge was indisputably correct.
¶3It appears from the written contract, recited in the motion, that the plaintiff agreed to take the brig Jerome, as she then lay at Chatham, into his possession, and transport her to Windsor; and to take her down to below her wales. This leading expression in the agreement, imports, that the plaintiff was to reduce the vessel down to her wales, and immediately below them. If the contract be construed to extend beyond this limit, it must be considered as including the entire bottom of the brig, even to the extremity of her keel; for which no one can seriously contend. Immediately succeeding the agreement, so far as it has been referred to, the plaintiff engaged to put in another set of top-timbers, wales and waist, take off her quarter-deck, and put on another flush-deck fore and aft. These particular provisions, except the top-timbers, all relate to that part of the brig, which was above the limit before-mentioned, and harmonize with the construction already given. The next expression in the agreement obliged the plaintiff to “replace all timbers that were defective, and raise said brig to a two-decker.” By the defendant, it is insisted, that the expression is entirely indefinite, and obliged the plaintiff to replace defective timbers in every part of the vessel; but this construction is too extravagant, for a moment to be admitted. It is equivalent to the assertion, that the plaintiff bound himself to build the brig anew, if necessary, and frustrates the clause in the contract, first mentioned; which obviously is a key to the construction of the agreement. The error of the defendant consists, in giving an exposition to the phrase in question, without regard to *465the other parts of the contract. But the construction must be made on the whole agreement. The contract, taken together, runs thus; that the defendant shall take the brig down below her wales, put in another set of top-timbers, wales, and waist, take off her quarter-deck, and put on another quarter-deck fore and aft, “and replace all timbers that are defective.” This latter clause has relation to the preceding expressions, and merely intends, that defective timbers are to be replaced by the plaintiff, within the limits of his agreement. Sheppard, in his Touchstone of Common Assurances, p. 87., after stating the principle, that the construction must be on the entire deed, illustrates the subject, by putting a case very much in point. “If (says he) "a man make a feoffment of all his land in D. with common in omnibus terris suis; this common shall be intended in the lands granted in D. only, and not elsewhere; for it must be understood secundum subjectam materiam.”
¶4The general object of the parties, was, to put on the brig an additional deck; and probably the contract would not have existed, if her bottom had been considered to be materially unsound. At least, it is a fair presumption, had it been anticipated that her bottom was in a defective condition, that the repair of it, would have constituted a prominent feature in the agreement. It could never have been the intention of the parties, to put on the brig a double deck, if a suitable foundation was deficient. But it is entirely probable, from the silence without the contract were latent, and first discovered on taking the brig down below her wales.
¶5The construction of the contract, by the judge at the trial, was entirely correct. It is an admitted fact, that the defendant has not conveyed to the plaintiff the third part of the vessel according to his agreement; and this relieves the case from any objection, relative to the sum received.
¶6New trial not to be granted.