Keith, P.:
Camp and Wilson entered into- a contract from which the following extract is made:
“ This agreement, entered into on the 11th day of September, 1889, between Isaac T. Wilson of the first part, and W. JST. Camp, all of Hansemond county, State of Virginia, of the second part, witnesseth: That whereas the said Isaac T. Wilson of the first part, for the consideration hereinafter stipulated, has bargained and agreed to- cut, haul, and deliver to- the said W. H. Camp, the second party, from the timbered lands belonging to the Gay Manufacturing Company along the line of the Suffolk and Carolina railroad, and those on the A. & D. B. P., forty thousand feet of merchantable saw-mill logs per day, or an average of about that quantity per day, for a period of two years, or in other words about ten millions of feet for each year, seven millions feet from timber on the Suffolk & Carolina road, and three millions feet from the timber on the A. & D. P, P. at or near what is known as Hollands Comer.”
By the terms of this contract- it was expected to occupy about the period of two years in its execution, and, in accordance with it, the parties thereto commenced operations. At the end of the month the quantity of lumber cut and delivered by Wilson to Camp was ascertained, and an account made out which was paid by Camp about the middle of the succeeding month. This was the general course of business, t-hough it happened upon one or [267]*267two occasions that the account was not settled for two, or it maybe, three months. During the conduct of the business, Wilson complained that standing trees were not furnished, and that in other respects Camp had not complied with his contract, whereby he had been delayed to his serious loss because his business required a large equipment of men, horses, and material, and he notified Camp that he intended to hold him responsible for the damages thus sustained, which were not embraced in any of the periodical settlements made between them. On the other hand, there is evidence tending to prove that the monthly settlements before mentioned were made by Camp, and the money received by Wilson, without making any objection or protest. When the work was completed under the contract, Wilson sued Camp in the Circuit Court of Yansemond county for the time lost and damages sustained by reason of Camp’s delay in providing standing timber to be cut, hauled, and delivered in accordance with the terms of the contract. Wilson recovered a judgment for $1,500, and, Camp having taken sundry bills of exceptions to the rulings of the Circuit Court, the case is now before us upon a writ of error.
During the progress of the trial Camp asked the court for two instructions, which are as follows:
“ First. The court instructs the jury that by the contract of September 11, 1889, there is no obligation on the defendant to furnish I. T. Wilson, the plaintiff, any standing timber, and that if they believe from the evidence that the damages sustained by the plaintiff was because of a failure to obtain, at convenient seasons, standing timber from the lands of the Gay Company, that he cannot then recover from the defendant, unless they further believe that said defendant was the cause of plaintiff’s failure to get said timber.”
“ Second. The court instincts the jury that if they believe from the evidence that monthly or other periodical settlements of accounts were made between W. FT. Camp and I. T. Wilson [268]*268during the continuance of the contract between them, for the purpose of showing the standing of the accounts, and ascertaining the balance due from one to the other; and further believe that such balance, when found due to Wilson, was paid to him by the defendant, W. 17. Camp, without objection on the part of Wilson to any item therein, or to the balance as thus ascertained and received, then the court instructs them that same would be an account stated, and the plaintiff is barred from recovering damages growing out of the transaction of the parties prior to said account and settlement, unless they further believe that said -balance, when accepted by said Wilson, was received by him in ignorance of the fact that suph damages had been caused, or that there was some fraud in the mailing up of said account.”
The court refused to give these instructions, and in lieu thereof gave instructions numbered 7 and 13, which are-as follows:
“ 7. The court instructs the jury that, by a true construction of the contract between Gamp and Wilson, it became the duty of Camp to use all reasonable means in his power to secure necessary rights of way, and standing timber from the Gay Company, in sufficient quantities to enable the plaintiff, with- a proper equipment of men, train and cars, &c., to cut and deliver to said Camp, under said contract, 40,000 feet of logs per day during the continuance of said contract, and if the jury believe from the evidence that said Camp, did use all reasonable means to furnish necessary rights of way and standing timber in quantities as aforesaid from the Gay Company, then his liability ceased on that account.”
“ 13. The court instructs the jury that if they believe from the evidence that monthly or periodical settlements of .accounts were made between W. 17. Camp and I. T. Wilson, during the continuance of the.contract between thenij for .the purpose of shewing the standing of the accounts,, and ascertaining the balance due from one to the other, and further believe that such [269]*269balance, when found due to Wilson, was paid to him by the defendant W. X. Camp, without objection on the part of Wilson to any item therein or to the balance as thus ascertained and received, and if the jury believe, from the evidence, that when said Wilson received said balance he had not notified or did not then notify said Camp of his intention to hold him responsible for damages sustained by Camp’s failure to comply with the contract on his part, then they must find for the defendant.”
The action of the court in refusing the instructions asked for by Camp, and giving those in lieu thereof asked for by Wilson, is assigned as error.
I am of opinion that the first instruction asked for by plaintiff in error should have been given. There is certainly no express covenant requiring Camp to secure standing timber from the “ Gay Co.” in sufficient quantities to enable 'Wilson to comply with his undertaking. Xor can I see that any such covenant is to be necessarily inferred from the language used in the contract. If, therefore, the contract is to be so construed, it must be by force of the fact that the parties themselves have placed that construction upon it. In a doubtful case, the construction placed xxpon a contract by the parties will be accepted hy the court; and, while, in my judgment, with respect to this contract, there is no room for such an interpretation, yet it is enough for me to say that, whether or not the parties have themselves placed such a construction upon it, is a question of fact to be proved by the evidence like any other fact, and, if controverted, to' be submitted to the jury upon proper instructions.
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Keith, P.:
Camp and Wilson entered into- a contract from which the following extract is made:
“ This agreement, entered into on the 11th day of September, 1889, between Isaac T. Wilson of the first part, and W. JST. Camp, all of Hansemond county, State of Virginia, of the second part, witnesseth: That whereas the said Isaac T. Wilson of the first part, for the consideration hereinafter stipulated, has bargained and agreed to- cut, haul, and deliver to- the said W. H. Camp, the second party, from the timbered lands belonging to the Gay Manufacturing Company along the line of the Suffolk and Carolina railroad, and those on the A. & D. B. P., forty thousand feet of merchantable saw-mill logs per day, or an average of about that quantity per day, for a period of two years, or in other words about ten millions of feet for each year, seven millions feet from timber on the Suffolk & Carolina road, and three millions feet from the timber on the A. & D. P, P. at or near what is known as Hollands Comer.”
By the terms of this contract- it was expected to occupy about the period of two years in its execution, and, in accordance with it, the parties thereto commenced operations. At the end of the month the quantity of lumber cut and delivered by Wilson to Camp was ascertained, and an account made out which was paid by Camp about the middle of the succeeding month. This was the general course of business, t-hough it happened upon one or [267]*267two occasions that the account was not settled for two, or it maybe, three months. During the conduct of the business, Wilson complained that standing trees were not furnished, and that in other respects Camp had not complied with his contract, whereby he had been delayed to his serious loss because his business required a large equipment of men, horses, and material, and he notified Camp that he intended to hold him responsible for the damages thus sustained, which were not embraced in any of the periodical settlements made between them. On the other hand, there is evidence tending to prove that the monthly settlements before mentioned were made by Camp, and the money received by Wilson, without making any objection or protest. When the work was completed under the contract, Wilson sued Camp in the Circuit Court of Yansemond county for the time lost and damages sustained by reason of Camp’s delay in providing standing timber to be cut, hauled, and delivered in accordance with the terms of the contract. Wilson recovered a judgment for $1,500, and, Camp having taken sundry bills of exceptions to the rulings of the Circuit Court, the case is now before us upon a writ of error.
During the progress of the trial Camp asked the court for two instructions, which are as follows:
“ First. The court instructs the jury that by the contract of September 11, 1889, there is no obligation on the defendant to furnish I. T. Wilson, the plaintiff, any standing timber, and that if they believe from the evidence that the damages sustained by the plaintiff was because of a failure to obtain, at convenient seasons, standing timber from the lands of the Gay Company, that he cannot then recover from the defendant, unless they further believe that said defendant was the cause of plaintiff’s failure to get said timber.”
“ Second. The court instincts the jury that if they believe from the evidence that monthly or other periodical settlements of accounts were made between W. FT. Camp and I. T. Wilson [268]*268during the continuance of the contract between them, for the purpose of showing the standing of the accounts, and ascertaining the balance due from one to the other; and further believe that such balance, when found due to Wilson, was paid to him by the defendant, W. 17. Camp, without objection on the part of Wilson to any item therein, or to the balance as thus ascertained and received, then the court instructs them that same would be an account stated, and the plaintiff is barred from recovering damages growing out of the transaction of the parties prior to said account and settlement, unless they further believe that said -balance, when accepted by said Wilson, was received by him in ignorance of the fact that suph damages had been caused, or that there was some fraud in the mailing up of said account.”
The court refused to give these instructions, and in lieu thereof gave instructions numbered 7 and 13, which are-as follows:
“ 7. The court instructs the jury that, by a true construction of the contract between Gamp and Wilson, it became the duty of Camp to use all reasonable means in his power to secure necessary rights of way, and standing timber from the Gay Company, in sufficient quantities to enable the plaintiff, with- a proper equipment of men, train and cars, &c., to cut and deliver to said Camp, under said contract, 40,000 feet of logs per day during the continuance of said contract, and if the jury believe from the evidence that said Camp, did use all reasonable means to furnish necessary rights of way and standing timber in quantities as aforesaid from the Gay Company, then his liability ceased on that account.”
“ 13. The court instructs the jury that if they believe from the evidence that monthly or periodical settlements of .accounts were made between W. 17. Camp and I. T. Wilson, during the continuance of the.contract between thenij for .the purpose of shewing the standing of the accounts,, and ascertaining the balance due from one to the other, and further believe that such [269]*269balance, when found due to Wilson, was paid to him by the defendant W. X. Camp, without objection on the part of Wilson to any item therein or to the balance as thus ascertained and received, and if the jury believe, from the evidence, that when said Wilson received said balance he had not notified or did not then notify said Camp of his intention to hold him responsible for damages sustained by Camp’s failure to comply with the contract on his part, then they must find for the defendant.”
The action of the court in refusing the instructions asked for by Camp, and giving those in lieu thereof asked for by Wilson, is assigned as error.
I am of opinion that the first instruction asked for by plaintiff in error should have been given. There is certainly no express covenant requiring Camp to secure standing timber from the “ Gay Co.” in sufficient quantities to enable 'Wilson to comply with his undertaking. Xor can I see that any such covenant is to be necessarily inferred from the language used in the contract. If, therefore, the contract is to be so construed, it must be by force of the fact that the parties themselves have placed that construction upon it. In a doubtful case, the construction placed xxpon a contract by the parties will be accepted hy the court; and, while, in my judgment, with respect to this contract, there is no room for such an interpretation, yet it is enough for me to say that, whether or not the parties have themselves placed such a construction upon it, is a question of fact to be proved by the evidence like any other fact, and, if controverted, to' be submitted to the jury upon proper instructions. If, therefore, I am correct in saying that the language of the contract does not by its terms admit of the construction placed upon it by the Circuit Court, but that, in order to x*each that construction, it was necessary to adopt as a part of the contract the interpretation placed upon it by the parities themselves, then the court, instead of saying that by a “ txue construction ” of the contract between Camp and Wilson, it became the duty of Camp to do [270]*270certain things, should have said: If from the evidence the jury are of opinion that Camp and Wilson have placed a construction upon this contract, then they are bound by it, and certain duties flowed from it. In other words, it is the duty of a court to construe a written contract, but whenever it is necessary to refer to testimony of witnesses in order to ascertain the contract, or to ascertain facts in the light of which the contract is to be construed, then the court is bound to refer such controverted matters of testimony to the decision of the jury. I am averse, under such circumstances, to read a covenant into the contract of the parties by implication as to which they have seen fit to be silent, and, in my judgment, the doctrine of implied covenants should only be resorted to' where the implication is necessary in order to give a reasonable construction and operation to the language which the parties have seen fit to employ; but, as the majority of the court is of the opinion, that, by the terms of the contract, Camp was bound to provide sufficient timber to enable Wilson to cut, haul, and deliver the stipulated number of feet within the prescribed time, this assignment of error must be overruled.
Coming, then, to the thirteenth instruction given by the court, in lieu of instruction Ho. 2 asked for by the plaintiff in error, I am of opinion that the instruction as given is misleading and erroneous. Here were transactions between parties running through a considerable period of time, and involving a number of settlements. According to the instruction, as given, if, at the first settlement of accounts between Camp and Wilson, Wilson received the money, and notified Camp of his purpose to^ hold him responsible for damages, the terms of the instruction would be satisfied, although Wilson’s conduct from that time henceforth was such as to indicate a waiver on his part of his purpose to hold Camp responsible, and thereby lulled bim into a false security. If Wilson did not intend that Camp should rely upon these recurring settlements, he should have made Camp under[271]*271stand that fact, and the notification given to that effect, followed by a subsequent course of dealing at variance with the purpose to hold him responsible in damages at the close of the transactions between them, may have been the means of doing him an injustice. If the monthly settlements were made by Camp and received by Wilson without protest, or explanation, or notice of a puipose upon his part to hold Camp responsible for the damages for which he now sues, then the doctrine enunciated in American Mang. Co. v. Va. Mang. Co., 91 Va. 272, is conclusive of the case in favor of plaintiff in error. It is there stated: “If one owing a sum of money, the amount of which is not ascertained and fixed, offers his creditor a certain sum, declaring that it is in full for all that is owing him, which sum is accepted by the creditor, such acceptance is in full discharge of the demand.” And, again: “ If the defendant knew of any irregularity, or had ground of complaint, at the time these monthly settlements, returns, and payments were made, it was the duty of the defendant to have made known and insisted upon its objections then; but if, instead of doing so, it accepted such payment, and gave receipts in full for the amounts shown to be due by such settlements and returns, it is concluded by the original amounts as fully as if formal and final settlement of accounts had been made between'the parties, and the defendant cannot now go behind such settlements and receipts in full without showing that there was fraud or mistake.”
The contention, however, of Wilson is that damages for which he now sties were not embraced in any of the monthly settlements made with Camp, and that the latter fully understood that lie was to be called upon to account for them upon a final settlement. It should have been left to the jury, upon the evidence, to say which version of the dealings they believed and accepted. In other words, the monthly settlements, in the absence of fraud or mistake, should have been held as final and conclusive between the parties, unless from all the evidence the [272]*272jury believed that they were made with knowledge upon Camp’s part that be was to be held responsible in the final settlement between himself and Wilson for the damage claimed in Wilson’s declaration.
Without passing upon the remaining assignment of error, which is to the ruling of the court in refusing to set aside the verdict as contrary to the law and the evidence, we are of opinion that the judgment of the Circuit Court should be reversed, and a new trial be awarded in accordance with the views expressed in this opinion.
Riely, Cabdwell, and Buchahah, JJ., concur with Keith, P.