Dickhut vs. Durrell. These are all the cases in our reports, except 5 Gilm., 456, noticed below, referred to by the counsel for the defendant; and it will be perceived that there are only two of them (Leigh vs. Hodges, 3 Scam., 17, and Hill vs. Ward, 2 Gilm., 293,) which even refer to the question as to whether the instructions of the Court may not be made the ground of a motion for a new trial, and presented to this Court upon the decision of such motion, though the instructions may not have been excepted to at the time they were given. In Evans vs. Fisher, 5 Gilm., 456, another case cited by defendants, the Court merely say that a bill of exceptions should appear on its face to have been taken at the trial, but the Court refuse to strike the bill in that case from the record, because it had been prepared and signed after term. In Sheppard vs. Wilson, 6 Howard, U. S. Rep., the Court decide that the Supreme Court of Iowa committed no error in rejecting a bill of exceptions, taken and purporting on its face to have been taken over two years after the trial of the cause. In Line vs. Evan, 1 Pike, 358, the Court merely decide that the pleadings should not be put into a bill of exceptions, and state truly the object of a bill-to preserve the evidence. In 2 Pike, 20, there was no bill of exceptions setting out the evidence in the case, but only notes of the evidence, which the Court refused to consider. In Walton vs. The U. States, 5 Cond. Rep., 721, the exceptions were to the evidence, and the Court say that the exception should be taken at the trial; but in this very case the Court, before remarking this, had considered the evidence, and decided the case upon the merits. In 3 Pike, 452 and 461, the bill of exceptions was filed the day after judgment was entered, and considered a good bill. In the case in 3 Howard's Miss. Rep., 117, a motion had been made in the Court below for leave to withdraw a plea on affidavit. The bill of exceptions did not state the motion, and it was brought before the Supreme Court only by affidavit. The Court decide that the motion should have been presented in the bill. In this case there was a bill taken, after a motion for a new trial had been overruled, and the Court considered the questions presented by it. In 1 Howard, 126, the instructions had not been excepted to when they were given, and no motion for a new trial had been made. Dickhut vs. Durrell. BROWNING & BUSHNELL, for defendant in error: 1. An agreement will be construed with reference to extrinsic circumstances surrounding the transaction, and the situation of the parties, and the subject matter of the contract. Sayer vs. Peck, 1 Barb., 464; Hasbrook vs. Paddock, 1 Barb., 635, 638-9; Brown vs. Slater, 16 Conn., 192. The language used by one party in a contract is to receive such a construction as he supposed the other party would give to it, or such construction as the other party was fairly justified in giving it, and where equivocal words are used, they are to be taken most strongly against the party using it. Gunnison vs. Bancroft, 11 Vermont, 490; Evans vs. Saunders, 8 Porter, 497; Hawes vs. Smith, 3 Fairf., 429. Words in a contract will be construed to give effect to the contract, and so as to meet the real intention and understanding of the parties. Thrale vs. Newall, 19 Vermont, 202; Ferguson vs. Coleman, 3 Richardson, 99; Wilson vs. Jones, 8 Alaba., 536; Russel vs. Nicoll, 3 Wend., 118. 2. The representation in the contract is, that Dickhut & Bennison had lumber at the mill at the time of the contract. It does not represent that they would thereafter have the lumber sawed, or that they had a contract for lumber at the mill and were to have it at a certain time, but that they actually had it there. It did not appear even that the lumber was sawed or was to be sawed at that mill, or that it had any connection with the mill, except as the point at which their then lumber was located. Lumber at the mill in gross, to be sawed by the mill owners, and to be delivered to them, was not their lumber till actually measured and set apart for them; and if Hill had had a contract to deliver the lumber at the mill at a day named, it would still have remained Hill's so long as it was mixed up with other lumber. That Durrell was to go and get the lumber " as soon as it could be done," shows that the understanding was that Durrell was to find the lumber there. Barnes vs. Graham, 4 Cow., 452; McDonald vs. Howell, 15 John., 351; Russell vs. Nicoll, 3 Wend., 112, 118. There is no proof whatever that there was even an offer to Durrell to furnish him with the 110,000 feet of lumber belonging to Dickhut & Bennison, whose lumber alone he had contracted to raft. Proof that there was sufficient lumber in quantity without proving it was the lumber of Dickhut & Bennison, was not sufficient. Cobb vs. Williams, 7 John., 24; Dickhut vs. Durrell. Newton vs. Galbreath, 5 John., 119; Barnes vs. Graham, 4 Cow., 452. By the contract the lumber was to be there ready Dickhut was bound to see that it was all there. Full Rice vs. for him. performance in this respect was required of him. Churchill, 2 Denio, 145; Hammond vs. Gilmore, 14 Conn., 479, 485; Kimball vs. Grover, 11 N. H., 376. And Durrell was not bound to accept any of the lumber till it was all ready. He was not bound to accept of a part performance. Davenport vs. Wheeler, 7 Cow., 231; Cobb vs. Williams, 7 John., 24; Bruce vs. Pearson, 5 John., 535; Russell vs. Nicoll, 3 Wend., 118; Wilcher vs. Hale, 11 Eng. Com. Law, 224. If Dickhut did not have the lumber there, but expected to have it there on demand, or in a reasonable time on demand, so that Durrell would have to wait, he should have so informed Durrell. But in requiring peremptory movements of Durrell, he clearly did not expect any delay. If he represented the lumber as then being there, and he had at the time known the fact, it would have excused Durrell from any attempt to perform his contract. Harrington vs. Wills, 12 Vermont, 505, 509; Boodell vs. Parsons, 10 East., 359. Nor can Dickhut, having set up a complete performance by his plea, show any excuse or waiver of performance. Davenport vs. Wheeler, 7 Cow., 231. But the questions sought to be raised in this case do not properly arise on the paper in the case called a bill of exceptions. It was signed and filed several days after the trial. It does not purport to be on exceptions taken at the time of the occurrences, nor is the motion for a new trial, the overruling of which is now assigned for error, even noticed or alluded to in the bill of exceptions. Exceptions to evidence must be taken as soon as the Court decides to admit or reject it, though the exception may be reduced to form afterwards. Pool vs. Fleeger, 11 Pet., 185, 211; Ex parte Bradstreet, 4 Pet., 102. A party cannot assign for error the admission of testimony to which he did not except. Sawyer vs. City of Alton, 3 Scam., 129; Smith vs. Moore, 3 Scam., 464; Scott vs. Floyd, 9 Pet., 441. The giving or refusing instructions must be excepted to at the time, and if not done, no exception can be taken to the decision of the Court in giving or refusing instructions, on a motion for a new trial. Hill vs. Ward, 2 Gilm., 293; Leigh vs. Hodges, 3 Scam., 15; Gibbons vs. Johnson, 3 Scam., 63; Gilmore vs. Ballard, 1 Scam., Dickhut vs. Durrell. 252; Miere vs. Brush, 3 Scam., 24; Ward vs. Ward, 3 Gilm., 285; Updike vs. Armstrong, 3 Scam., 566; Randolph vs. Asley, 8 Missouri, 656; Bompart vs. Boyer, ibid, 234; Life and Fire Insurance Company vs. Mechanics' Insurance Company, 7 Wend., 34. The exceptions should be express and direct to the point in question. They may all be grouped in a single sentence; but they must be at least mentioned as exceptions taken at the proper time, and applied by the bill to the points raised for the examination of the Court, on writ of error. This bill excepts to "all the foregoing," but whether to the evidence or to the instructions no one can tell. Wallace vs. Warren, 17 Wend., 259; Frier vs. Jackson, 8 John., 495; Ludlam vs. Broderick, 3 Green, 269, 275; Trueluck vs. Peeples, 1 Kelly, 1; Reab vs. McAlister, 8 Wend., 109. The correct practice is to prepare the bill of exceptions on the trial, and file it of the term. Where this is inconvenient, a note of the exception should be taken at the time, and leave given by entries on the record, to reduce the note of exception to form afterwards, when the bill should be filed nunc pro tunc. But at whatever time the bill is reduced to form and signed, it should purport on its face to have been taken and signed at the time of the occurrences mentioned in it; otherwise, though copied into the record, it will be considered as no part of the record, and will be wholly invalid and disregarded. Evans vs. Fisher, 5 Gilm., 453; Leigh vs. Hodges, 3 Scam., 17; Walton vs. The United States, 5 Cond. Rep., 721; Shepherd vs. Wilson, 6 How. U. S., 260, 274-6; Law vs. Merrils, 6 Wend., 268; Wilson vs. Owens, 1 How. Miss., 126; Green vs. Robinson, 3 How. Miss., 105; The Governor vs. Evans, 1 Pike, 349, 360, 361; Lenox vs. Pike, 2 Pike, 14, 21– 24; Shepherd vs. White, 3 Cow., 32; Gibbons vs. Johnson, 3 Scam., 61; Ex parte Bradstreet, 4 Pet., 107; Hawkins vs. Lowrey, 6 J. J. Marsh., 443. Great stress is laid in numerous cases upon the fact that the statute requires that the exception should be taken at the trial. Such is our statute. Where this is required by statute we have been able to find no case in which it was not held that a bill of exceptions must show on its face, in express terms, that the exception was, in fact, taken at the proper time. See Revised Stat. 1833, page 491, sec. 19; do., 1845, page 416, sec. 21. Even in New York it is a question of practice. The law does Dickhut vs. Durrell. not specify the time when the exception shall be taken, and the .exception, when taken, must appear on the face of the bill to have been taken at the time. Law vs. Jackson, 8 Cow., 746; 9 Wend., 241; Dean vs. Endley, 10 Wend., 255; The People vs. Dalton, 15 Wend., 581; 6 ibid, 268; Willard vs. Warren, 17 Wend., 259; 8 Cow., 746; 3 Pick., 174. The Court cannot reverse the judgment on the ground that the Court below erred in overruling the motion for a new trial. No exception was taken to the overruling of the motion. Independent of the fact that the general exceptions noted in the bill of exceptions were not taken in time, no exception was, at any time, taken to the overruling of said motion. The bill of exceptions is here copied into the record, and shows positively and conclusively that no such objection ever was taken, either at the time or afterwards, in the Court below. The bill of exceptions does not even notice or allude to any such motion, and it is only from an order on the record that we arrive at the knowledge that such motion was made. The decision of the Court in overruling the motion for a new trial, cannot be inquired into here, where it was not excepted to in the Court below, and at the time. Miller vs. Dobson, 1 Gilm., 574; Hill vs. Ward, 2 Gilm., 285; Barnes vs. Barber, 1 Gilm., 401, 407-8; Vanderbilt vs. Johnson, 3 Scam., 50; 1 U. S. Dig., page 412, sec. 37; Clemson vs. Kruper, Breese, 162; Gibbons vs. Johnson, 3 Scam., 61. On the examination of the above cases, and the original record on file therein, the Court will find that the bill of exceptions contained the evidence and instructions, yet the Court would not act on the evidence or instructions, simply because the bill of exceptions was not taken and so shown to be in apt time, a view sustained by all the decisions as irrefragable. Nor does the fact that the evidence and instructions are all set out in the bill of exceptions, make any difference, unless the exceptions are properly taken at the proper time, and so shown by the bill. The bill is to be disregarded for all purposes, and the Court cannot in such cases look into the bill to see whether the Court erred in overruling the motion. That question has been already decided in this Court, and a similar question has been decided in New York. It results, as a necessary consequence of the principle so often decided, that the bill is a nullity. The bill cannot surely be a nullity, and be at the same time good and available |