majority">Christiancy J.:

The principal question in this case arises upon the construction given to the lease, in the charge of the court helow to the jury, which was, “That Norris was not bound by the terms of the lease to call for that portion of rent payable in board, as the same became due, and within the year, but was at liberty to call for the same in board at any time; and if Evans refused to pay the same in board when demanded, that then Evans was liable to pay the plaintiff the amount in money; and that if the defendant wished to avoid the payment of the rent in money or board at any future period, it was the defendant’s duty to notify Norris that he was ready to board any person sent by him, and demand that Norris should send boarders there within, the time prescribed by the lease.”

We think this charge was erroneous, and not warranted by a fair construction of the lease. The provision for taking half the year’s rent in board “as the same falls due,” applies, we think, exclusively to the first year’s rent; and such, on the argument, was admitted to be the express Words of the lease, though the word “first” is omitted in the record. As it applies only to the first year’s rent, it is quite evident, from the whole instrument, it should be read in connection with the covenant for the payment of the rent of that year, and as a part or qualification of that covenant, and clearly implies the assent and obligation of Evans to pay in that way, as much as that of Norris thus to receive it.

It is not optional with Evans to pay in money or board. He would not be at liberty to refuse the board; and though such refusal might render him liable to pay the money, it *372would be as damages (and not necessarily as the entire damages) for the breach of the contract. The cases cited by counsel for the defendant in error, as to the right of election to pay in one of two ways, do not therefor apply.

By any fair construction of this lease, we think Norris was bound to call for that portion of the rent payable in board, within the year, and substantially as the same became due; that he could not claim the whole board during a single month, nor any part of it after the expiration of the year, which would be entirely outside of the contract. — Clement v. Clement, 8 N. H. 215. Having a right wholly to refuse to board after the year had expired, he might, if he chose to board at all, make such terms, and impose such conditions, as he pleased.

The fair import of the whole contract is, that the board was to be furnished at the hotel to' be kept by the lessee; and it would be a most unnatural perversion of the instrument which should extort an inference that Evans was required to furnish it elsewhere. No other place is mentioned; the furnishing of board is one of the ordinary uses to which hotels in this country are applied.

It would be equally extravagant, we think, to infer a duty on the part of Evans to call upon Norris and demand that he should send the boarders. He had contracted to receive half the rent in board, and was entitled to it in no other way. His own interest ought to be sufficient to prompt him to notice his rights and obligations under his own contracts.

The charge was therefore erroneous, and tended to mislead the jury to the injury of the defendant.

There are other errors assigned upon the charge, but as all those which are presented with sufficient clearness grew out of, and are included in, the one already noticed, it is not necessary to notice them here.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.

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