Denny to Tuttle Bros.:

"Beaver, Utah, March 14, 1905. Gentlemen: Your letter of the 9th came duly to hand and I am somewhat surprised that you had arrived at such an unreasonable conclusion regarding the payments. . . . I am making a great sacrifice in accepting $2650 for the place, and must insist on the proposition as originally made between us— that is for $20 per month plus 7 per cent. interest per annum on the deferred payment, and beg to inform that I will not execute any contract whatever to sell until this is made clear and definite."

Tuttle Bros. to Denny:

"March 25, 1905. Dear Madam: Aside from the 'understanding' or 'misunderstanding' (whichever it is your pleasure to consider) the awkward predicament that confronts us is what to do in the premises. Mr. Roberts has expended in the neighborhood of $250 upon improvements, is in possession of the property, and refuses to change the terms of the contract as understood by him when he made his payment. He explains the transaction to us the same as he did at the time he made his proposition to purchase. At that time he explained that until he disposed of some of his other real estate holdings it would be impossible for him, besides making the improvements on the property he contemplated to make, more than twenty dollars monthly payments. We know of

no way in which either you or we can be relieved of this obligation to Mr. Roberts, and we therefore submit to you the above in the hope that it will be received in the way it is intended."

Denny to Tuttle Bros.:

"Beaver, Utah, March 30, 1905. Gentlemen: Yours of the 25th to hand. I never authorized Mr. Roberts to make any improvements on the place. I gave your Mr. Munroe my acquiescence to expend ten dollars-his own estimate to make the necessary repairs and no more. I never met Mr. Roberts and as to what this understanding about the place was I do not know. I was doing business with your firm through Mr. Munroe, and if you have a purchaser in this Mr. Roberts it must be on the terms agreed upon between us, and Mr. Roberts has no right in or upon the place until the matter is concluded on the original terms. I wish it distinctly understood that he has nothing at all to do with me in this matter and I will not recognize him at all in the deal. . . . I stand ready and willing to sign up on the terms first agreed on, and will not consider your other offer at all. If this is not suitable you can consider the deal off for good."

Tuttle Bros. to Denny:

We Lave

Mr. J. H.

. . We

"Salt Lake City, Utah, April 5, 1905. Dear Madam: conveyed the contents of your letter of the 30th ult. to Roberts, and he positively declines to call the deal off. feel that by closing the deal you would not in any way sacrifice any interest and we feel keenly the position Mr. Roberts is in."

Denny to Tuttle Bros.:

"Beaver, Utah, April 12, 1901.

Gentlemen: I am in receipt

of yours dated the 6th, wherein you state that you had conveyed the contents of my last letter to Mr. Roberts and that he positively declined to call the deal off. There is no deal on between Mr. Roberts that I am aware of and therefore is none to call off. Mr. Roberts is simply a trespasser upon my property, as he did not go there (if he is there now) with my sanction. And as you seem to be conveying the contents of my letters to him, just convey the contents of this one-to vacate the premises forthwith. Seeing my

terms of sale are not going to be complied with, I will now serve notice upon you that the deal is off entirely."

Tuttle Bros. to Denny:

"Salt Lake City, Utah, April 26, 1905. Dear Madam: It will be impossible for you at this time to declare the deal off for your Sixth street residence, as it has been sold to Mr. Roberts by authority of your written instructions. As Mr. Roberts is now in possession of the property, has expended hundreds of dollars upon it, and has kept all his contracts, we must conclude that you are poorly advised at that end of the line. It is impossible for us to declare the deal off for the reasons before stated, and we must positively refuse to attempt such a thing, or order Mr. Roberts to vacate the premises." (Italics ours.)

The proposed contract between Mrs. Denny and Roberts for the sale of the property in question, and which was prepared by Tuttle Bros. and forwarded by them to Mrs. Denny for her signature, provided that the terms of payment should be as follows: "Three hundred dollars down upon delivery of this contract; twenty dollars on the 13th day of March, 1905; twenty dollars or more on or before the 13th day of each and every month thereafter until all is paid inclusive of interests on all deferred payments at the rate of seven per cent per annum." In the case of Denny v. Roberts,

hereinbefore referred to, a writ of garnishment was served upon Tuttle Bros., and their answer thereto, which was admitted in evidence, recites in part as follows:

"Mr. Roberts paid us a deposit on the place of three hundred dollars, and has paid seventeen monthly installments since at twenty dollars each, $340. These sums were credited to Mrs. Denny on our books, for whom we acted as agents in the sale of her place. . . After charging her account with certain items . . . left us in our possession $479.10 paid by Mr. Roberts on account of the above deal to comply with contract as agreed to by Mrs. Denny, and which we hold for Mrs. Denny. . . . We understand a judgment has been rendered against Mr. Roberts in this case, and this judgment is made for the purpose of dispossessing Mr. Roberts from his rightful possession of this place."

At the close of plaintiffs' case, on motion of defendants (they having, by permission of the court, reserved the right to make the motion), the court struck out all parol testimony of plaintiffs with reference to conversations "to the time or to the payments to be made," and all evidence with reference to the expenditures made by plaintiffs in repairing and improving the property while they were in possession, and the expenses and costs they incurred in defending the action in ejectment brought against them by Mrs. Denny, and the judgment of $412.50 rendered against them in said action, also all the correspondence and the other documentary evidence hereinbefore referred to; the court holding that there was "no element of damage recoverable by plaintiffs except the amount paid by them, together with interest from the time of payment." The court thereupon directed a verdict in favor of plaintiffs for the amount paid, with interest. To reverse the judgment entered on the verdict, plaintiffs have brought the case on appeal to this court.

MCCARTY, J. (after stating the facts as above). The first question to be determined is, What were the respective rights and obligations of appellants and defendants under the agreement signed by them, and which it set out in full in the foregoing state

ment of facts? This agreement, among other things, provides that: "Tuttle Brothers furnish good title to said. property for not exceeding $2650 on the following terms of payment, to-wit, three hundred dollars cash in hand paid, and the balance in monthly installments of twenty dollars per month with seven per cent interest." It is contended by counsel for respondents that, under the agreement, appellants were required to pay twenty dollars per month on the principal of the purchase price, and in addition thereto to pay monthly the interest on all deferred payments, and, not having done so, they defaulted, and are therefore only entitled to recover the amount paid on the purchase price with legal interest. On the other hand, appellants claim that up to the time the judgment of eviction was rendered against them, and they were thereby dispossessed of the property, they performed every duty required of them by the terms of the contract, and that they are not only entitled to recover the money paid by them on the purchase price, but are also entitled to recover for all losses sustained by them because of respondents' want of authority from the owner of the property to make the contract in question. Under the construction contended for by counsel for respondents appellants would have been required to pay $33.71 as the first installment, instead of twenty dollars as provided in the contract, and the same amount, less about 11 cents, as the second installment, and so on until the final payment was made, the amount of interest payable each month gradually growing less in proportion to the reduction. made on the principal by the monthly payments. True, it may be said that by a strained construction the interpretation contended for by respondents' counsel might be given the contract, but we think the more fair and reasonable construction is that appellants were only required to pay twenty dollars per month on the balance of the purchase price, inclusive of interest (Root v. Johnson, 99 Ala. 90, 10 South. 293), and that the general rule of partial payments should apply in this case. This is the interpretation the parties themselves gave the contract, and seventeen monthly

installments of twenty dollars each were paid by appellants and accepted by respondents under this construction. In fact, the record conclusively shows that both appellants and respondents, from the time the contract was executed until the commencement of this action, intended to and did so construe it. Where parties to a contract, regarding which there may be doubt or uncertainty as to its proper construction, have, with knowledge of its terms, given it the same practical construction, and where, as in this case, they have by their acts given effect to such construction, the construction thus adopted will generally be adhered to by the courts in giving effect to its provisions. In 9 Cyc. 588, the general rule is stated as follows:

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"Where the parties to a contract have given it a particular construction, such construction will generally be adopted by the courts in giving effect to its provisions. And the subsequent acts of the parties, showing the construction they have put upon the agreement themselves, are to be looked to by the court, and in some cases may be controlling."

Many cases are cited in the footnote in support of this doctrine. (2 Paige on Contracts, sec. 1126; Bishop on Contracts, sec. 412; School District v. Davis, 76 Neb. 612, 107 N. W. 842; Stewart v. Pierce, 116 Iowa 733, 89 N. W. 234; Fiscus v. Wilson, 74 Neb. 444, 104 N. W. 856; Keith v. Electrical Co., 136 Cal. 178, 68 Pac. 598; Kennedy v. Lee, 147 Cal. 596, 82 Pac. 257; Dist. of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585, 31 L. Ed. 526; Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057, 30 L. Ed. 1110; McLean County Coal Co. v. City of Bloomington, 234 Ill. 90, 84 N. E. 624.) Applying the rule as declared by these as well as many other authorities that could be cited, to the undisputed facts of this case, it necessarily follows that appellants were at no time in de fault, and therefore cannot be held to have breached the contract.

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The next assignment of error discussed by the parties involves the question of the measure of damages which appellants are entitled to recover from respondents because of