Sims, J.,
after making the foregoing statement, delivered the following opinion of the court:
The material questions presented by the assignments and cross-assignments of error will be disposed of íd their order as stated below.
[139]*139As stated in the brief of counsel for the defendant, Loth—
1. “The main question at issue is what construction should be put upon the letter” of April 2, 1913; is it to be construed as a promise of Loth, binding him to pay the unpaid subcontractors and material men not only the money then owing and subsequently becoming due, which Loth might owe upon a final settlement with the general contractor, but also whatever money was then owing and that should subsequently become due to the unpaid subcontractors and material men from the general contractor, even though Loth might not owe the general contractor a sufficient balance upon final settlement to cover such money?
The question must be answered in the affirmative.
The inquiry involves the consideration of “the relation that must exist between volition (or intention) and expression,” as affecting the interpretation of acts which are essential to the formation of a contract, which Mr. Wigmore characterizes as “the world-old legal problem, inevitably faced in the history of every jurisprudence.” 4 Wigmore on Ev., sec. 2404. The breadth and profundity of the subject and the ability with which the volitional side of the problem has been urged in argument for the defendant in the causes before us (that side being too much emphasized by such argument, as we think), seem to warrant the somewhat extended quotations which we shall hereafter make of some concrete conclusions from a learned work on Contracts, which we believe to be correct in principle and in accord with the almost, if not quite, unanimous holding of modern decisions, and which, too, are on the whole in accord with the views of Mr. Wigmore on the subject when those views are all considered together. The great length with which the latter learned author has treated [140]*140this subject renders it impracticable for us to convey his meaning by quotations within the space available to us.
In 2 Williston on Contracts, sees. 603, 604, 605, 607, 810, this is said:
See. 603. “In order to determine the legal meaning of a contract a ‘standard of interpretation,’ to use Wig-more’s helpful phrase, must first be established—that is the code by which the meaning of the language and acts of the parties is to be defined.' It is useless to talk of the ‘meaning’ of a contract unless it is known whose meaning is sought; and this inquiry, as will be seen, cannot be disposed of by the answer—the meaning of the parties. Wigmore distinguishes four possible standards: ‘The standard of the community, or popular
standard, meaning the common and normal sense or words; the local standard, including the especial usages of a religious sect, a body of traders, an alien population, or a local dialect; the mutual standard, covering those meanings which are peculiar to both or all.parties to a transaction, but shared in common by them; and the individual standard of one party to an act as different from that of the other party or parties, if any.
“A slightly different further standard may, however, be supposed for a bilateral transaction. This standard is the sense in which the party using the words should reasonably have apprehended that they would be understood by the other party * *
Sec. 604. “Different standards of interpretation must be applied to different classes of contracts.
“The standard of interpretation adopted by the law depends on the character of the contract under consideration. In one division must be put not only formal contracts, such as sealed instruments and negotiable paper, but also contracts where the parties have agreed [141]*141on a writing or other fixed symbol as a memorial or integration of the agreement. In this class must also be put contracts of which the law requires a written memorandum. Snch a memorandum need not necessarily be an integration or memorial of the contract; but the purpose of the law in requiring written evidence can only be satisfied if the same standard is applied to memoranda under the statute as is applicable to written contracts. (Last italics supplied.),
“In the second division must be put all other contracts. * *”
Sec. 605. “In contracts of the second class, the standard of interpretation which the modern law tends to accept, and which is supported by sound principle, is that suggested at the end of section 603; namely, the sense in which the party who used the words in question should reasonably have apprehended that the other party would understand them.”
Sec. 607. “Standard of interpretation where a writing has been adopted.
“According to the weight of authority and on principle, when the parties have assented to a writing as an expression of their agreement, or where a writing is required by law, the standard of interpretation is the local standard—that is, the natural meaning of the writing to parties of the kind who contracted, at the time and place where the contract was made, and with such circumstances as surrounded its making. * *” (Last italics supplied.)
Sec. 810. “The intent of the parties, where the contract is written, is ineffectual unless expressed in the writing.
“The mental intent of the parties to a contract may be inadequately expressed in two kinds of cases which it is important to differentiate in discussing interpretation.
[142]*142“1. There may be an' intent which is wholly unexpressed, whatever standard of interpretation be adopted. It is not only possible but common for a party to fail to express by the language he uses what he intends to express. He would himself admit this if the deficiency in his language were pointed out to him. A lawyer who has attempted to draw a complicated trust or contract, knows how easy it is to omit to provide for one of many possible contingencies which he intends to cover.
“2. The intent may be inadequately expressed, but the language of the writing though not naturally bearing the sense intended by the one who used it, if the words are taken individually, whether they are interpreted according to the normal standard, or even according to the local standard, nevertheless indicates the intent by the general tenor and purpose of the contract if taken in connection with surrounding circumstances. Cases which fall under these two headings doubtless shade into one another. Nevertheless the distinction is a real one, and it may be said without qualification that if the parties have made a memorial of their bargain, or a writing is required by law, their actual intent unless expressed in some way in the writing is ineffective, except when it can be made the basis for reformation of the writing. It is true' that it is commonly said that the court in the interpretation of contract is endeavoring to find the intention of the parties. The natural meaning of this language is that the court is endeavoring to find as a controlling factor what, as has just been seen, may be wholly ineffectual. In contracts of which no memorial is made, and no writing required by law, it is doubtless true that where parties have made a bargain which both of them understand in a certain sense, their intent (which at least has been made plain to one another) [143]*143must be sought, however inadequately it may have been expressed. But in contracts of the other class, this is not true, and although courts may say they are seeking the intention of the parties, the assertion is even more emphatic that this intention can be found only in the expressions of the parties in the writing. ■ In effect, therefore, it is not the real intent* but the intent expressed or apparent in the writing which is sought.”
See to same effect note 12 Am. & Eng. Ann. Cas., p. 392; McNeer v. C. & O. Ry. Co., 76 W. Va. 803, 86 S. E. 887; Stonega Coal & Coke Co. v. L. & N. R. R. Co., 106 Va. 223, at pp. 226-7, 55 S. E. 551, 9 L. R. A. (N. S.) 1184. Citations of other authorities to the like effect might be multiplied indefinitely.
It is true that the court will always put itself in the place of the contracting parties, and, although the contract is in writing, will read it in the light of all the circumstances surrounding the parties when the contract was made; and, further, where the writing only partly expresses the intention in question and is ambiguous, because of careless or inapt expressions, the court may consider the actual intention in aid of the interpretation of the writing; still, in such ease, it is not merely the intention of one of the parties which is to be considered, but the intention also of the other party, or parties, to the contract as found substantially expressed in the writing itself, when the court reads the whole of it in the light of all of the aids to interpretation mentioned. Rockefeller v. Merritt, 76 Fed. 909, 22 C. C. A. 608, 40 U. S. App. 666, 35 L. R. A. 633; Nease v. Coal, etc., Co. (D. C.), 195 Fed. 987; Bower v. McCormick, 23 Gratt. (64 Va.) 310; Deans v. Eldredge, 217 Mass. 583, 105 N. E. 449; Shenandoah, etc., Co. v. Clark, 106 Va. 100, 55 S. E. 561.
On applying the principles and rules of inter[144]*144pretation above mentioned to the interpretation of the letter of April 2, 1913, when read in the light of all the surrounding circumstances as shown in evidence, we are of opinion that the letter expresses the promise of the defendant, Loth, to pay to the plaintiffs, other than Sitterding-Carneal-Davis Company, the money in question.
Loth testifies that°at the time the letter was signed by his agents and sent out to the plaintiffs (all admittedly authorized at the time by him), the sole intent which he had in mind was merely to notify the subcontractors and material men that the agreement had been made between him and the general contractor by which all money due and to become due from himself to the general contractor would be paid directly by himself to the subcontractors and material men, and such money only.
Now, if such limited or conditional intention existed in the mind of Loth at the time mentioned, it was certainly not expressed in any way in the letter. The language used contains no suggestion that any limitation upon his undertaking was intended or that any condition was attached thereto. The reference to the agreement between Loth and the general contractro and the words “paid directly” make the letter unequivocally express the meaning, as we think, that all money due (then or thereafter) by the general contractor to the subcontractors and material men would be paid by the owner to the subcontractors and material men, and that the money would be sent out by checks signed by J. A. Johnston, agent for Loth, without any limitation upon the undertaking other than that the money must be for material or labor furnished for the said building and be due the subcontractors or material men from the general contractor. Therefore, if the letter be regarded as a promise “to answer for the [145]*145debt of another,” so that it is within the statute of frauds (Code, see. 5561), then when interpreted in accordance with the standard of interpretation applicable under the authority above quoted, it must be construed to be a promise to pay the money in question without the condition or limitation claimed by Loth, for the reason that, if the intent on his part to impose such limitation or condition existed at the time, it was wholly unexpressed in the letter.
But a careful consideration of the evidence convinces us that the actual intent in the mind of Loth at the time the letter was signed and sent out was to express thereby the undertaking to pay the subcontractors and material men all money for material or labor furnished as aforesaid due them, then or thereafter, by the general contractor, without any actual intent then existing of limiting the amount to what he might owe the general contractor. Loth’s own testimony shows that at that time he did not have in mind to put such a limitation upon his undertaking. His testimony itself shows—and the other evidence is to the same effect—that Loth at that time had no idea that such a limitation would ever become material. He then had been, recently informed by one of the Richardsons that the general contractor had diverted some of the seventy-two thousand and odd dollars of money paid by Loth on the Chamber of Commerce building and used it to pay subcontractors on another building contract. But Loth evidently did not think that such diversion of funds had been of any considerable amount, or that it would at all affect the sufficiency of the amount he still owed and would owe the general contractor to amply cover all money due and to become due to subcontractors and material men on the Chamber of Commerce building. Loth did not even inform his architects of what Riehardsonhadtoldhim. Ac[146]*146eordingto Johnston’s testimony, he knew of no diversion of funds until about the time the Chamber of Commerce building was completed. Loth had no investigation on the subject made. And the contract of April 2nd between Loth and the general contractor shows that Loth then thought, and doubtless so did Richardson & Sons, that there would be a balance owing to the general contractor on final settlement upon completion of the building, after all money due subcontractors and material men was paid, otherwise the provision in the contract on that subject would not have been embraced in it. It seems plain to us that the letter of April 2nd is but an instance of what often occurs in business transactions, namely, the failure of a good business man at times to inform himself accurately of existing conditions or to anticipate and provide in his contracts or undertakings against liability in the event of situations developing in the future, which might reasonably have been anticipated as probable or likely to arise, but which were not thought of at the time. Loth by the letter expressed what he, indeed, then intended, namely, the unqualified general undertaking aforesaid, without thinking or anticipating at the time that the undertaking was too broad; that a situation might develop in the future in which that undertaking would render him liable for more than he had agreed to pay the general contractor. Hence he omitted to qualify the undertaking contained in the letter in that particular so as to protect himself against the situation which unexpectedly to him did in fact afterwards develop. Had his attention been called to this at the time he doubtless would have admitted the omission and have inserted words supplying the omission; unless, indeed, he had recognized, what we think from the testimony for plaintiffs was probably true, that the letter would not have been satisfactory to [147]*147those to whom it was addressed with such a limitation expressed in it, so that it would not have accomplished the business purpose he had in view in sending out the letter. But we need not enter upon the consideration of such a feature of the transaction. It is sufficient for the decision of the question before us to confine ourselves to the letter itself, and to its correct interpretation as applied to the situation which afterwards developed. That situation unquestionably arose, at least in part, from the aforesaid diversion by the general contractor prior to April 2nd of money which Loth had paid him as aforesaid. To what extent this caused the insufficiency of the balance, left owing to the general, contractor on final settlement, to pay all unpaid subcontractors and material men, the record does not disclose. It may have been the cause of the whole of such deficiency, or there may have been other causes, such as the cost of labor and material being greater than anticipated, miscalculation, bad management, etc., all of which might reasonably have been anticipated as likely to occur, but which clearly, according to the evidence, did not occur to the mind of Loth at the time of the aforesaid letter as likely to happen, at least not to such an extent that he then thought that he would suffer any loss by reason of the undertaking on his part contained in the letter. He doubtless had in mind at the time the expected profit of the general contractor from the contract and also the bond of the contractor for $30,000.00, standing between him and any such loss. The record does not disclose whether that bond does or does not still stand as an indemnity against such loss. But whether it does or does not is immaterial to the subject under consideration. The reliance upon that bond, as reported by the master commissioner, was undoubtedly one of the features which induced the aforesaid absence [148]*148of any thought in the mind of Loth at the time of the letter that he would suffer any loss by reason of the undertaking contained in the letter. If he has lost that indemnity for any reason, that too was a thing that he might have anticipated might occur, and he could, for that reason also, have put some qualification upon the undertaking in the letter, but, as aforesaid, he omitted to do so.
If the letter in question were regarded as evidencing an original undertaking on the part of Loth, and not the mere promise to pay the debt of another, so that the standard of interpretation, enunciated by Williston in the above quotations from that learned work, applicable to the second class of contracts mentioned were applicable to the interpretation of the letter, the result would be the same. According to that standard the letter would be construed in “the sense in which the party who used the words in question should reasonably have apprehended that the other party would understand them.” When we consider that the plain and unequivocal language of the letter conveyed the unconditional meaning aforesaid; that the plaintiffs had no information which tended to induce any of them to give any other meaning to the letter than that borne upon its face; and that the testimony of or for them is direct and express to the effect that they each, except Sitterding-Carneal-Davis Company, construed and acted upon the letter as the unconditional undertaking of Loth to pay them the money in question; we think the letter must be so construed, even under the standard of interpretation last mentioned.
Therefore, whether we regard the promise contained in the letter as within or without the statute of frauds, the conduct of the promisees in furnishing the material and labor in accordance with the terms of and with in[149]*149tent to accept the promise, constituted the acceptance of the promise, and consummated the completed contracts between the defendant, Loth, and the promisees, respectively, who thus acted.
We do not understand that it is claimed in argument for the defendant, Loth, that the reference in the letter to the “agreement” which had been “perfected” between him and the general contractor, gave the plaintiffs constructive notice of the contents of that agreement (to-wit, of the contract in writing aforesaid). Hence we do not review any of the many authorities on that subject, and shall content ourselves with saying that as the reference is an indirect one, does not purport to refer to the contract as hunting the unqualified undertaking expressed in the letter, which, by the terms of the letter, is complete in itself, we are of opinion that the letter did not give the plaintiffs constructive notice of the contents of the contract.
It is earnestly and ably argued in behalf of the defendant, Loth, that the conduct of the plaintiffs, after April 2, 1913, consisting of their communications being confined to those with the general contractor and the architect, Johnston, and of no claim having been made upon Loth of personal liability, until after the insufficiency of the balance owing to the general contractor to pay all unpaid claims was discovered; and of demands for money having been uniformly before this made by the plaintiffs of the general contractor and Johnston—one or two of plaintiffs going so far as to claim to Johnston that his representations had made him personally liable to such plaintiffs—shows that none of the plaintiffs understood the letter as having the unconditional meaning aforesaid, but understood it as Loth claims he reasonably apprehended they would understand it; and that even if this be not true, the [150]*150aforesaid- conduct of the plaintiffs estops them from relying on any other interpretation of the letter. Upon this subject we deem it sufficient to say that in view of the course of dealing requested by Carneal & Johnston in the second and third paragraphs of the letter, we do not think that the failure of the plaintiffs to communicate with or make any personal demand upon Loth before the aforesaid insufficiency of funds was discovered, has any significance adverse to the claim of the plaintiffs of the personal liability aforesaid on the part of Loth to them. We find nothing to the contrary in the holdings in the eases of Detroit Savings Bank v. Love-land, 168 Mich. 163, 130 N. W. 678, and Wright v. Terry, 23 Fla. 160, 2 So. 6, cited and relied on for the defendant, Loth. In both of these cases, the circumstances were very different from those in the record before us.
In truth, the conduct of Loth and of the plaintiffs, o’ther than Sitterding-Carneal-Davis Company, respectively, in so far as the matter of non-communication with each other, and the demands of the plaintiffs upon the general contractors and Johnston, between the time of the letter and the discovery of the aforesaid deficiency of funds is concerned, is entirely consistent with the respective positions taken by them after such discovery. So that we receive no aid in the interpretation of the letter from the conduct of the parties in this particular which is so much relied on in argument for the defentant, Loth.
It is also urged in behalf of the defendant, Loth, that the general rule applicable to guaranties, of strictissimi juris, is applicable to the letter of April 2nd. On the subject of such rule, in 2 Williston on Contracts, see. 625, this is said: “* * it must ce confined to cases of sureties for accommodation. A guaranty given [151]*151for the business advantage of the guarantor, and written by him; instead of being construed in his favor, indeed comes within the rule so often applied to insurance policies, ‘that the words of the writer of the policy will be "taken most strongly against him.’ * * * The question whether slight variations of risk shall discharge a surety from liability under his contract is often confused with the questions of the interpretation of his' promise but should be.considered separately.”
We do not think the form of the first paragraph of the letter prevents its being construed as the promise or undertaking of the defendant, Loth, to pay the money in question.
As said in Colgin v. Henley, 6 Leigh (33 Va.) at p. 94: “We must recollect that there is nothing technical * * in the word promise. It is a word in free and common use. I consider that any writing signed by A. and addressed or given to B., by which the writer declares his willingness, assent, or intention, to pay B. a certain sum of money, is a promise to pay that sum, whatever be the form of words in which it is clothed; * * Hi >>
The cases of Stewart v. Reckless, 24 N. J. Law (4 Zab.) 427-430, and May v. West. Tel. Co., 112 Mass. 90-94, cited and relied on for the defendant, Loth, on this subject, are not in point. In the former decision, the expression referred to was merely of an intention to do a thing, not of an undertaking to do it, as in the cases before us. In the latter decision, the statement referred to was merely that the person making it was “authorized to do a certain act.”
As said in Williston on Contracts, sections 13, 22, -22a, 24 and 25:
“Section 13. * * An offer of reward, an offer of a jprice for goods or services, becomes a contract when [152]*152what is requested is given or done, though no obligation to give or to do anything ever exists.”
“Section 22. It is customarily said that mutual assent is essential to the formulation of simple contracts, but it should be further stated that mutual assent must be expressed by one party to the other, and except as so expressed is immaterial. In some branches of the law, especially in the criminal law, a person’s secret intent is important, but in the formation-of contracts it was long ago settled that secret intent was immaterial. . * * * the fundamental basis of contract in the common law is reliance on outward act, (that of a promise) * *. The assent of the promisee to a unilateral contract may be indicated by an act requested by the promisor, but of which he has no knowledge unless he takes steps to inform himself; but a promise necessarily implies either communication from the promisor to the promisee, or at least some action which will indicate to the promisee the intent of the promisor.”
“Section 22-a. Assent may be expressed by acts.— Though assent must be expressed to be legally effective, it need not be expressed by words. In the early law of assumpsit stress was laid on the necessity of a promise in terms, but the modern law rightly construes both acts and "words as having the meaning which a reasonable person present would put upon them in view of the surrounding circumstances.”
“Section 24. Requirements of a promise.—A promise from the very meaning of the word, involves an undertaking to do something in the future. * * The chief requirement is that the promise shall be sufficiently certain in its terms to enable the court to understand what, the promisor undertakes. * *”
“Section 25. An offer is a promise.—An offer is a. statement by the offerer that he will give a return for [153]*153some promise or act of the offeree. As the offeror’s statement necessarily looks to the future, it must always be promissory in terms. It is sometimes assumed that an offer is something different in its nature from a promise and hence from a contract, but this is a mistake. An offer is always a conditional promise, and it may be a contract. * * * An offer is to be known from other conditional promises only because the performance of the condition in an offer is requested as the exchange or return for the promise in the offer, thereby giving the offeree a power, by complying with the request, to turn the promise in the offer into' a contract * *. The offer may be for the formation either of a bilateral contract or a unilateral contract. * * If the offer contemplates the formation of a unilateral contract, it may be that the offerer proposes to exchange his own promise for an act of the offeree. * *”
When construed in the light of the surrounding circumstances shown in the evidence, we think that the first paragraphs of the letter of April 2nd, when the letter was sent to and received by the subcontractors and material men, was an offer on the part of Loth to pay them respectively for such material and labor as they had theretofore furnished for his building and such as they would thereafter furnish therefor, upon condition that they would allow Loth to receive and utilize the same in his building, in accordance with the contracts already and thereafter made therefor with the general contractor (and hence without any delay due to distrust of receiving payment therefor), and without assertion of mechanics’ liens or litigation of any sort (which, too, would result in expense to Loth and delay in the completion of his building); p,nd the performance of that condition on the part of those to whom the letter was sent was, under the circumstances, impliedly [154]*154and unmistakably requested by tbe terms of tbe letter, as the exchange for tbe promise contained in it. 1 Williston on Contracts, secs. 22-a and 112, at p. 233. No promise on tbe part of those to whom it was sent was requested by tbe letter, looking to a bilateral contract, which would have required an express acceptance on tbe part of tbe promisees of tbe offer contained in tbe letter. Merely tbe act of tbe offerees, respectively, consisting of furnishing tbe material and labor for tbe purpose aforesaid in accordance with their contracts made and to be made with tbe general contractor, and then allowing tbe owner of tbe building to receive and utilize tbe same, as aforesaid, and without tbe delay aforesaid, was expected. Nor was there any limit of time fixed by tbe letter within which tbe aforesaid act was to be performed, other than that it was to be in accordance with tbe contracts with tbe general contractor. Hence, as above said in substance, tbe aforesaid acts of tbe offerees, done with tbe intent to comply and in fact complying with all of tbe terms of tbe letter, turned tbe promise contained in tbe letter into tbe aforesaid contract obligation of tbe defendant, Loth.
2. Was there sufficient consideration to support tbe aforesaid promise on tbe part of Loth to pay tbe aforesaid unpaid claims of tbe plaintiffs, other than Sitterding-Carneal-Davis Company, so as to render tbe promise enforceable?
.The question must be answered in tbe affirmative.
Here again, we do not find it necessary to decide tbe very interesting question whether tbe promise is an original undertaking because upon new and valuable consideration, or a promise to pay tbe debt of another, since in either case it must have been supported by valuable consideration in order to be enforceable. Whether tbe promise falls within tbe one class or tbe [155]*155other of promises, it is plain, under the evidence, that as to all of the respective plaintiffs, other than Sitter-ding-Carneal-Davis Company, it was supported by valuable consideration.
We do not understand that this conclusion is intended to be assailed by the argument for the defendant, Loth, if the conclusion we have reached, that the unconditional promise aforesaid was- made, were conceded to be sound. We shall not, therefore, enter upon any extended consideration of the question now before us. We deem it sufficient to say on this subject that the situation disclosed by the evidence is different from where the promise is to pay the debt of another and the consideration moving from the promisee goes to another and not to the promisor; or where the consideration consists solely in the forbearance of the promisee to do something, whereby the promisor is benefited, or where the only consideration is that the promisee, on the faith of the promise, changes his status quo ante to his injury. In the cases before us, other than that involving the claim of Sitterding-Carneal-Davis Company, the promisor, Loth, received the consideration moving from the plaintiffs—and received it unincumbered at the time, and unincumbered later, until he refused to comply with his promise, by any lien, or claim of lien, or suit— which, but for the promise, would not have been the case, according to the preponderance of the evidence. The receipt by Loth of the material and labor thus unincumbered furnished to him by such plaintiffs because of the promise, constituted valuable consideration for the promise. In such ease it is elementary that whether the consideration was commensurate with the promise is immaterial. If the consideration has any value whatever, it is, in such ease, sufficient to support the promisee and render it enforceable.
[156]*156Here was a benefit received by the promisee, at his request (since the furnishing of it was induced by his aforesaid letter), and a benefit moving from the promisee. This was in itself, regardless of any detriment to the promisee, or of anything else whatsoever, sufficient consideration to support the promise. 1 Williston on Contr., sees. 102, 114. Moreover, it was an executed consideration. The promisor received and accepted, in exchange for his promise, something which he was not previously entitled to receive. Hence, it was also an adequate consideration to support the promise, “though it had been but a peppercorn.” Idem, secs. 102-a, 115.
As to all of the claims of the plaintiffs, except that of McMillan & Son, the labor and material was furnished to Loth, in whole or in part, after the letter, because of the aforesaid unconditional promise expressed in it. That was sufficient consideration to support the promise as to all of such plaintiffs. As to the claim of McMillan & Son—the material was furnished before the letter was received by it; but it surrendered the material to Loth, unincumbered as aforesaid, after the letter was received, because of the aforesaid unconditional promise of the latter, as it established, as we think, by the preponderance of the evidence.
3. Can this court consider the cross-assignment of error of the parties, Richmond Engineering and Manufacturing Company, and C. C. Pruden Company, who did not appeal from the decree under review, but are appellees, were served with or acknowledged the process of and are before this court as such, upon the appeal, and give such parties the benefit of the above holdings?
We think that this is apparent from the provisions of Rule VIII of this court, which, so far as material, is as follows:
“In any appeal * * if error is perceived agains^ [157]*157any appellee or defendant, the court will consider the whole record as before them, and will reverse the proceedings, either in whole or in part, in the same manner as they would do were the appellee or defendant to bring the same before them * * by appeal *
It results from what we have said above that we are of opinion that the defendant, Loth, is personally liable' to all of the plaintiffs, except Sitterding-Carneal-Bavis Company. This result renders it unnecessary to deal with any of the other questions raised by the assignments and cross-assignments of error touching the claims of such plaintiffs.
We come now to deal with the material questions raised by the assignments of error affecting the claim of Sitterding-Carneal-Bavis Company.
4. Bid the institution of the first above entitled suit—which was not a general creditor’s or a general creditor’s lien suit, but had for its sole object the enforcement of the mechanic’s lien and other alleged rights of the plaintiff in that suit, and to which Sitter-ding-Carneal-Bavis Company was not made a party, and did not in any way become a party, until it filed its petition to enforce its mechanic’s lien and other alleged rights, which was more than six months after the whole amount covered by the lien claimed became payable— suspend the running of the period in which the statute then in force (Pollard’s Code 1904, section 2481), required suit to enforce any such lien to be brought?
The question must be answered in the negative.
The statute involved (Pollard’s Code 1904, section 2481), is as follows:
“Section 2481. Limitation of Lien.—No suit to enforce any lien perfected under the six preceding sections of this chapter shall be brought after six months from the time when the whole amount covered by such lien [158]*158has become payable; provided, however, that the filing of a petition to enforce any snch lien in any suit wherein such petition may be properly filed shall be regarded as the institution of a suit under this section.”
Spiller v. Wells, 96 Va. 598, 32 S. E. 46, 70 Am. St. Rep. 878, and Craig v. Hoge, 95 Va. 275, 28 S. E. 317, are relied on in argument by counsel for Sitterding-CarnealDavis Company as holding that the institution within the time required by said statute of a suit by any mechanic’s lien holders in which the holders of other mechanic’s liens might properly file their petitions to enforce their liens, stopped the running of the statute in question as to such other mechanic’s, liens. ' We do not think that these cases so hold. They, in substance, hold merely that the institution of such a suit confers upon the court in which it is brought, if that court has territorial jurisdiction, exclusive jurisdiction of the subject matter and of all of the parties before the court in such suit, and hence suspends, during the pendency thereof, the running of said statute of limitations as to any mechanic’s lien, on the same property as that involved in such first brought suit, held by one who is a party before the court in such suit. The obstacle in the way of the plaintiff, whose claim is now under consideration, obtaining the benefit of the holding in the cases referred to, is that it was in ho way a party to the original suit,, which is relied on to stop the statute, until after the six months running of the statute was completed and such plaintiff’s mechanic’s lien was barred by the statute.
Francis & Co. v. Hotel Rueger, 125 Va. 106, 99 S. E. 690, is also relied on in argument as sustaining the position that the order of reference for an account of liens in a mechanic’s lien suit stops the running of the statute on all mechanic’s liens on the same property which is involved in the suit. But the holding in that ease does. [159]*159not sustain such position. In that case, Warren-Ehret Company’s mechanic’s lien was held to be barred by the statute, because that company was not a party to either of two suits brought by other mechanics’ lien holders before the statute had barred its lien, and because another suit of the owner of the building to which it was a party was not brought until after the statute had barred its hen. There is a reference in the opinion' of the court to the fact that it was also true that when the account of liens was ordered in the two suits first above mentioned the lien in question was barred, but that was merely an incidental circumstance, in no way influencing the decision.
5. Was there error in the decree under review in excluding the plaintiff, Sitterding-Carneal-Davis Company, from any participation in the distribution of the fund of $12,798.58 and interest thereon from January 9, 1914, mentioned in the decree?
We are unable to answer the question.
We have not been able to find in the record the facts bearing thereon sufficiently disclosed to enable us to decide what are the rights of this plaintiff with respect to the fund in question. ' We will express below as definite views as we can on the subject and remand the case for further proceedings in the court below, if necessary, not in conflict therewith.
The plaintiff whose claim is now under consideration, in substance, alleged in its petition, and has shown by its proof, that it furnished the material covered by its claim in reliance upon the construction which it gave to the letter of April 2, 1913, which was that the letter merely notified it of the existence of the contract of April 2nd, and that Loth undertook by the letter to pay it, as a subcontractor, as provided by the terms of such contract. Loth cannot object to this po[160]*160sition as it is in accord with, his answer to such petition and with his attempted proof. The position is that the acts of this plaintiff were not intended as an assent to and so in acceptance of a promise on the part of Loth to pay its claim without the limitation or condition imposed that the liability therefor. should not go beyond the balance owing to the general contractor. As the acts were in themselves ambiguous, the actual intent was material, and, in such case, bars the plaintiff from establishing any other contract than that claimed in its petition. 1 Williston on Contracts, section 66. Therefore, since the court must in every case confine the decision to the issues made by the pleadings and established by the proof in the particular case, in so far as this plaintiff is concerned its rights with respect to participating in the distribution of the fund in question must be determined by the provisions of said contract, when applied to the material facts.
With regard to the retention by Loth of a fund to meet the subcontractors and material men, there is in the contract of April 2nd this provision: “The amount which shall be held by the said F. P. Loth to meet such payments to be made to * * material men, as above set forth, shall be in such amounts and at such times, as shall become due and payable by the said F. P. Loth to said Richardson and Sons in accordance with the terms of said contract.” The contract thus referred to is the agreement in writing between Loth and Richardson and Sons of date July 20, 1912. In that contract it is provided, with respect to the amounts and terms the money shall become due and payable to Richardson and Sons, as follows:
“Eighty-five (86) per cent, of work erected on the 15th of every month and the remainder when building has been completed according to plans and specifications and accepted by owner.and architect.
[161]*161“Provided that in each of said cases a certificate shall be obtained and signed by the architects.”
We think that the other provisions in the contract of April 2nd with reference to designating the material men and determining the amounts to be paid them, by “J. A. Johnston,” have reference to his action as one of the “architects” referred to in the contract of July 20, 1912; and that he was given no arbitrary right to designate to whom or what amounts were to be paid under the contract of April 2nd. Hence the last sentence of the contract of 1912 above quoted is changed by the April 2nd contract so that for the words therein “signed by the architects,” should be read “signed by J. A. Johnston, as architect.” As thus modified the aforesaid provisions of the July 20, 1912, contract and all of the provisions of the April 2, 1913, contract, when read together, fix the rights of the plaintiff Sitterding-Carneal-Davis Company to participate in the distribution of the fund in question.
The effect of the provisions of the two contracts of -April 2, 1913, and July 30, 1912, was that the rights of the respective subcontractors and material men to share in the distribution of the money due from Loth to the general contractor after April 2, 1913, accrued, respectively, following the incorporation of their labor and material into the work erected, at the times they, respectively, obtained J. A. Johnston’s certificate as architect, or, were entitled to receive such certificate, and to the extent of eighty-five per cent, of the amounts covered, or which would have been covered by such architect’s certificates; the remaining fifteen per cent, thereof not becoming due and payable until the building was completed, which was January 9, 1914, according to the report of said master commissioner.
Now it appears from the evidence that on October [162]*16224, 1913, Sitterding-Carneal-Davis Company obtained from the general contractors approval of such plaintiff’s claim to the extent of $3,073.69. "Whether the certificate, or certificates, of the architect, J. A. Johnston, in favor thereof had then been obtained, or was or were entitled to be obtained, we do not find disclosed by the record. Whenever such certificate, or certificates, for any part of the claim, was or were obtained or entitled to be obtained, such plaintiff’s right to participate in' the distribution of such balance of the money, then still owing to the general contractor, became fixed, to the extent of payment of eighty-five per cent, of the amounts then owing to it as aforesaid, and the residue of fifteen percent, thereof would not have become payable until the completion of the building, January 9, 1914, but should have been then set aside, as will be hereinafter stated.
To ascertain the balance of money still owing to the general contractor, as of the time the right of the plaintiff, Sitterding-Carneal-Davis Company, to participate in the distribution thereof became fixed, the whole of all of the claims of other subcontractors and material men entitled, as aforesaid, under the provisions of the contracts of April 2, 1913, and July 20,- 1912, to have been paid prior to such time,.unpaid as well as actually paid at such time, should have been deducted from the total amount which had accrued up to that time as owing to the general contractor from Loth, and fifteen per cent, of such total should be treated as set aside, as the reserve percentage under said April 2nd contract and the clause of the 1912 contract aforesaid incorporated therein, to await the completion of the building."
In the distribution of the balance thus ascertained, if there was any such balance, the plaintiff, Sitterding-Carneal-Davis Company, was entitled to participate pro rata to the extent of eighty-five per cent, of the said fixed [163]*163amounts of its claim along with eighty-five per cent, of the claims of all other subcontractors and material men which had not been paid or were not entitled to be paid as aforesaid prior thereto, but which were or would have been then covered by J. A. Johnston’s certificates as architect obtained, or entitled to be obtained as aforesaid, if any such claims there were; and if there was none such other claim, Sitterding-Carneal-Davis Company was entitled to be paid the eighty-five per cent, of the said fixed amounts of its claim as of the time or times the amount or amounts became fixed in right to distribution as aforesaid, if the balance available therefor was sufficient; and to have the fifteen per cent, residue of such amount or amounts then- set aside and reserved until the building was completed, if there was then available sufficient balance therefor.
Out of the balance then remaining, if any, exclusive of the total of the fifteen per cent, on all the aforesaid prior claims, which should be treated as set aside as aforesaid, the claims .of other subcontractors and material men, if any, which subsequently and up. to the completion of the building became entitled to have their rights fixed to share in such balance under the contract provisions aforesaid, in the same method as that outlined above as applicable to the Sitterding-CarnealDavis Company claim, should be treated as having been paid from time to time as they became entitled to their said eighty-five per cent, and to have their fifteen per cent, reserve percentage similarly set aside, as aforesaid.
If, when Sitterding-Carneal-Davis Company’s right to participate in the distribution to any extent became fixed, as aforesaid, there was any balance of funds applicable to its claim, or any part thereof, then as of January 9, 1914, it should be considered that there was a final balance, including the total of all the fifteen per cent, re[164]*164served percentages, which should have been reserved and set aside as aforesaid, since April 2, 1913, including Sitterding-Carneal-Davis Company’s said fifteen per cent.; and the further amount, which such plaintiff should receive should be ascertained by calculating what the share of the reserved fifteen per cent, of the amount of such plaintiff’s claim fixed in right of distribution, as aforesaid, would be in such final balance, in a pro rata division of such balance between it and the total of all the other fifteen per cent, reserved percentages aforesaid.
It will be seen from what is said above that whether there was any error in the decree under review in not allowing the Sitterding-Carneal-Davis Company claim to participate in the distribution in question will depend on whether claims prior in right aggregated such a total before any part of such plaintiff’s claim became fixed in right to share in the distribution that no balance of the fund was then left. If that was the case, there is no error in the decree on the subject under consideration. If that was not the ease and there was some balance left in which such plaintiff had some right to share, as aforesaid, there was error in the decree, and such plaintiff’s rights to share in the distribution must be worked out along the lines indicated above.
Further: If by any breach of the aforesaid contract provisions by the said Loth, Sitterding-CarnealDavis Company has been defeated of any rights as they are above defined by reason of the actual fund aforesaid not being of sufficient amount to satisfy the shares of money to which such plaintiff is entitled in accordance with the views above expressed, then we are of opinion that the defendant, Loth, is personally liable to such plaintiffs to such extent.
The decree under review will be reversed and decree of this court will be entered against the defend[165]*165ant, Loth, in favor of all of the plaintiffs aforesaid, except Sitterding-Carneal-Davis Company, for full amounts of the balances of their claims, respectively, to-wit: in favor of Richmond Engineering and Manufacturing Company for $2,944.53 with interest thereon from November 1, 1913, until paid; Guilford Marble and Tile Company for $4,614.80, with interest thereon from December 31, 1913, until paid; Norfolk Iron and Wire Works, Inc., $1,879.37, with interest thereon from January 14, 1914, until paid; Hammett Eire Proofing Company, $3,500.33, with interest thereon from December 14, 1913, until paid; Wm. A. Burchard Company, Inc., $1,185.03 with interest thereon from December 1, 1913, until paid; C. D. Pruden Company, $734.00, with interest thereon from January 1, 1914, until paid; W. F. Mahoney, $2,457.32, with interest thereon from January 14, 1914, until paid; and W. McMillan & Son, $2,265.94, with interest thereon from May 1, 1913, until paid; together with costs in this court and in the court below. And the cause of Sitterding-CarnealDavis Co. v. F. P. Loth will be remanded to the court below for such further proceedings therein as may be necessary not in conflict with the views above expressed in this opinion, without any allowance of costs to such plaintiff.
Reversed; final decree entered in favor of all of the plaintiffs except Sitterding-Carneal-Davis Company, and the cause of that plaintiff remanded for further proceedings.