the plaintiff's lands, for which injury the court rendered a judg ment against the defendant for fifty dollars as damages. In our view of the case, the defendant was equally liable with the plaintiffs for the expense of keeping the ditch in repair, and the failure of the latter to keep up repairs 600 upon it at their own expense did not authorize the defendant to fill it, for which reason the judgment for damages rendered against him will be allowed to remain. The plaintiffs will be allowed to appropriate one-half of the waters diverted, and required to bear one-half of the expense of maintaining the ditch across the defendant's lands, and, for the purpose of performing their part of the work, they must have the right of entry upon the said lands of defendant along the banks of the ditch. And, in case of the default of either party, the other may complete the necessary repairs, and thereupon the party in default shall be liable for one-half the expense thereof. The decree of the court below will be modified, and one here entered in accordance with this opinion.

COTENANCY-USE OF PROPERTY-REPAIRS-The entry of one cotenant is the entry of all: Hudson v. Coe, 79 Me. 83; 1 Am. St. Rep. 288. The seisin of one is the seisin of all: Vaughan v. Bacon, 15 Me. 455; 33 Am. Dec. 628. And the possession of one cotenant is the pos session of all, and inures to the benefit of all: Note to Vaughan v. Bacon, 33 Am. Dec. 629; Page v. Branch, 97 N. C. 97; 2 Am. St. Rep. 281; Greenhill v. Biggs, 85 Ky. 155; 7 Am. St. Rep. 579; Oglesby v. Hollister, 76 Cal. 136; 9 Am. St. Rep. 177. The possession of one cotenant is always presumed to be in accordance with a common title until some notorious and unequivocal act of exclusion occurs: Hudson v. Coe, 79 Me. 83; 1 Am. St. Rep. 288; Israel v. Israel, 30 Md. 120; 96 Am. Dec. 571. Each cotenant has the right to enter upon the lands of the cotenancy: Note to Harman v. Gaṛtman, 18 Am. Dec. 659. The general rule is, that a tenant in common cannot make his cotenant liable for repairs on the common property, even though recessary, without a previous request and refusal to join in making them: Note to Louvalle v. Menard, 41 Am. Dec. 165; but there are cases holding that a cotenant may recover from his fellow-tenants a proportion of the cost of repairs made by him: See monographic note to Robinson v. McDonald, 62 Am. Dec. 483, on repairs by cotenant. Notwithstanding this variance, if an action or bill for an accounting for rents and profits, or an action for partition, is brought against a cotenant, he is entitled to a proper allowance for necessary repairs: Note to Robinson v. McDonald, 62 Am. Dec. 483; and monographic note to Flack v. Gosnell 35 Am. St. Rep. 422, on the lien of one cotenant on the moiety of another; and the writ de reparatione was a process to compel repairs to be made under order of court: Note to Robinson v. McDonald, 62 Am. Dec. 483.

WATERS.-ABANDONMENT of a water right is a matter of intention, and, to constitute such abandonment, there must be an intent to abandon Note to Wimer v. Simmons, ante, p. 685; and, according to the general principles of the law of abandonment, there must be the concurrence of the intention to abandon, and the actual relinquishment of the property, so that it may be appropriated by the next comer: Note to Wyman v. Hurlburt, 40 Am. Dec. 464, on abandonment in general.

CASES

IN THE

SUPREME COURT

ОР

PENNSYLVANIA.

GRAYBILL V. PENN TOWNSHIP MUTUAL Fire InsurANCE ASSOCIATION.

[170 PENNSYLVANIA STATE, 75.]

INSURANCE-PAROL EVIDENCE OF THE MEANING OF A WORD.-If insurance is effected on a building and its contents, parol evidence is admissible, not only to show what these contents were, but further that it was understood between the parties that such contents should continue to be covered by the insurance, though they had been removed to another building, and the building in which they were when an insurance was effected was not injured by the fire. Hence, under a policy insuring a smokehouse and its contents, it is not error to admit evidence that the insurer was shown the house, and was told that insurance on the meats to be smoked therein was desired, and that such meats, when smoked, would be stored, and that, with full knowledge of the facts, the insurer selected the word "contents" as a proper and sufficiently descriptive word to cover the smoked meats, whether in the smokehouse undergoing process of smoking, or in the storeroom after its completion.

Eugene G. Smith and A. F. Hostetter, for the appellant.

J. Hay Brown and W. U. Hensel, for the appellee.

81 WILLIAMS, J. This case turns upon the meaning of the word "contents," as used in the policy of insurance sued on. A ground barn and a butcher shop were insured as one building for the sum of four hundred dollars, and the contents were insured for four hundred dollars more. A smokehouse was insured for 82 five dollars, and its contents for five hundred dollars. The barn and butcher shop were burned with their contents. The smokehouse was not burned, but its contents, which had been removed to a storageroom in one end of the butcher shop, were wholly consumed. The question presented on this appeal is,

whether the smoked meats in the storageroom, which were taken there as fast as they were cured in the smokehouse, were contents of the smokehouse, within the meaning of the policy, and were to be paid for by the company as part of the loss for which it was liable. Words must be understood in the sense in which they are commonly used in the business to which the contract in which they are found relates. This contract was to insure the buildings, machinery, and stock of a butcher. The president of the company proposing to insure was on the ground. The buildings and the property were examined by him. The evidence shows that in the barn and butcher shops there were a steam-engine and boiler, with conveniences for handling dressed cattle, machinery for chopping or grinding meat, and for making bologna and other sausages. These, as the plaintiff alleges, constitute the contents of the barn and butcher shop that were insured for four hundred dollars. The smokehouse and storageroom were also pointed out to him, and it was explained to him, as the plaintiff testifies, that the smokehouse could hold but a small amount of meat at one time while the process of smoking was going on, but the hams, sausage, bacon, or other meat was removed from the smokehouse when cured, and stored in the storageroom, and that what was wanted was insurance on the smoked goods. The plaintiff says that the president stated that the smoked meat would be properly insured as contents of the smokehouse, and these words were written in the application and policy with that understanding, viz., that they would include and cover the smoked meats taken out of the smokehouse for storage in the room used for that purpose. The learned judge of the court below left this evidence to the jury for their consideration, telling them if they were satisfied by it the word "contents," used in connection with the smokehouse, was understood and intended by both insurer and insured to cover the smoked meats in store, whether actually in the smokehouse or not, the plaintiff would be entitled to recover to the extent of five 83 hundred dollars for his loss on these goods. This is assigned as error, and the contention of the appellant is, that it permitted an alteration to be made in a written instrument upon the uncorroborated testimony of the plaintiff. But the word "contents" is not a certain and definite description of any particular class of goods. Its meaning must be ascertained by considering the context, the nature and methods of the business for which the building whose contents are to be insured is to be used, and the understanding and intentions of the parties as expressed at the time the insurance was con

tracted for. Thus we learn from the evidence in this case that the contents of the butcher shop were not made up of slaughtered cattle, but of a steam-engine and various pieces of machinery; while the contents of the smokehouse included hams, bacon, bologna sausages, and other forms of smoked meat. This is, in the absence of a detailed description of the articles in the body of the policy, the only way in which the character and value of the contents of a building can be shown. But the defendant alleges that, as the building was not burned, its contents could not be. This is a non sequitur. The contents might be destroyed while outside the building, and, when that happens, the question of the plaintiff's right to recover must depend on whether the purpose of the removal was such as to detach the goods permanently from the building and create a new or an increased hazard not contemplated when the contract for insurance was made. The investigation of this question is not an attempt to reform the contract, but to determine its meaning and extent. The rule in equity governing the reformation of contracts is not applicable, therefore, but the jury is at liberty to determine the question presented to them in this case by the preponderance of the evidence. The evidence showing the capacity of the smokehouse, the necessity for the removal of the smoked meat as soon as it was properly cured to some place near by for storage, while a fresh supply of meat for smoking was put in its place, the location of the storageroom and quantity of smoked meats kept in store ready for sale, was relevant to the inquiry in this case, and was properly admitted. So was the evidence tending to show that the attention of the insurer was called to the manner in which the smokehouse was used and the smoked meats stored, that he was informed that 84 the smoked meats were what were to be insured in connection with the smokehouse; and that, with full knowledge of all the facts, he selected the word "contents" as a proper and sufficiently descriptive word to cover the smoked meats, whether in the smokehouse undergoing the process of smoking, or in the storeroom after its completion. The facts and circumstances thus brought to the attention of the court and jury were helps to a correct exposition of the words the parties had employed. They tended to corroborate the plaintiff's version of the contract, and to sustain his claim. They were persuasive in their character, and, as we infer from their verdict, satisfied the jury that the words "contents of the smokehouse" were understood and intended by both parties to cover the smoked meats passing through

the smokehouse to the room near by, in which they were stored till needed for the supply of customers.

We see no error in the rulings complained of, and the judgment is affirmed.

PAROL EVIDENCE TO EXPLAIN WRITTEN INSTRUMENTS.Parol evidence is admissible to explain what is doubtful in a ballot: Rutledge v. Crawford, 91 Cal. 526; 25 Am. St. Rep. 212, and note; or to explain a latent ambiguity in a deed: Frost v. Erath Cattle Co., 81 Tex. 505; 26 Am. St. Rep, 831, and note; or to explain the meaning of abbreviations in a contract: Berry v. Kowalsky, 95 Cal. 134; 29 Am. St. Rep. 101, and especially note. Oral evidence may be admitted for the purpose of applying the terms of the writing to the subject matter, and removing any ambiguity arising from such application: Stoops v. Smith, 100 Mass. 63; 97 Am. Dec. 76, and note; Pursley v. Hayes, 22 Iowa, 11; 92 Am. Dec. 350; Sweat v. Shumway, 102 Mass. 365; 3 Am. Rep. 471. See, also, the extended note to Morton v. Jackson, 40 Am. Dec. 109.

FINK V. SMITH.

[170 PENNSYLVANIA STATE, 124.]

CONTRACTS MADE UNDER MISTAKE OF FACT.-Where certain facts are assumed by both parties as the basis of a contract, and it subsequently appears such facts did not exist, the contract is inoperative.

CONSIDERATION, WANT OF.-A contract made by the owner to obtain possession of his goods, when they are unlawfully withheld from him, is without consideration and void.

COMPROMISE, WHEN WILL NOT BE ENFORCED.-An agreement by the owner of personal property wrongfully withheld from him by another, on the latter's surrendering possession thereof, that it shall be returned to him, if his vendor, on a trial for stealing it, shall not be convicted, cannot be supported as a compromise, and is therefore void.

H. H. McClune and George B. Cole, for the appellant.

James B. Ziegler, for the appellee.

126 DEAN, J. Smith, the defendant, at a sheriff's sale of the personal property of one Sarah Hyde, wife of George Hyde, purchased a mare; then, as a mere act of kindness toward Mrs. Hyde, he left the animal temporarily with her; some months afterward, George Hyde, the husband, sold the mare to Fink, the plaintiff, who took her into his possession; Smith, the owner, hearing of this went to Fink and demanded his property, but he refused to surrender possession; then Smith informed Gallatin, the sheriff, who had sold her to him, of the wrong, and threatened to replevy her; Gallatin replied that was not necessary, as he would get her