The opinion
By the Court, E. Darwin Smith, J.
Whether the defendant was a mere depositary of the $200 specified in his receipt, or had an interest in the money, was a question of fact upon the true construction of the receipt, in view o.f the extrinsic circumstances existing at the time it was given. Such facts are always admissible in evidence, not to contradict the instrument, but to aid in its interpretation. Contracts must *318 always be construed in reference to the subject matter to which they relate, and in the light of the contemporaneous facts and circumstances. The facts in evidence in this case, I think, would have warranted the jury in finding that the $200 was left with the defendant in naked deposit for the plaintiff’s own benefit and use. But in this aspect of the case, which was the view taken by the judge on the trial, the plaintiff clearly was not entitled to recover as the case stood when the motion was made for the nonsuit, or afterwards. The defendant was not liable to an action for this money until a distinct demand had been made upon him personally to restore it to the plaintiff, and he had' refused so to do. Bostwick does not appear to have asserted any title to the money, or to have distinctly refused at any time to pay it to the plaintiff. He asked the plaintiff’s father if he, the plaintiff, would not turn the amount on his (the father’s) Jackson contract. Here was no assertion' of title to the money or refusal to pay it over, and it appears • that the money remained in his hands, not used. A bailee or depositary is not liable to an action until demand and refusal. (Edwards on Bailments, 85, 87. Brown v. Cook, 9 John. 361 . Beardslee v. Richardson, 11 Wend. 25 .) The plaintiff should have been nonsuited, or the question in respect to demand and refusal should have been submitted to the jury.
[Monroe General Term,
September 1, 1856.
Hew trial ordered; costs to abide event.
T. R. Strong, Welles and Smith, Justices.]