to be sup Wick's refusal to receive any more thereon does not appear ported by the evidence; hence this ground of repudiation cannot be sustained. The foregoing views are supported by the following rules and citations: "If one partner enter into a transaction with third persons, within the scope of the partnership business, all members of the firm are bound. Pars. Partn. 219. Every member of an ordinary partnership is its general agent for the transaction of its business in the ordinary way, and the firm is responsible for whatever is done by any of the partners, when acting for the firm within the limits of the authority conferred by the nature of the business it carries on. The principal is bound by the ratification or adoption of transactions by his agent, if the agent had the authority to do the thing which he ratified or adopted. Whitehead v. Wells, 29 Ark. 99; Irwin's Appeal, 35 Pa. St. 296; Palmer v. Cheney, 35 Iowa, 281; Ewell's Evans, Ag. 55. The supreme court of Alabama says: "Both principal and the agent may ratify acts of an unathorized person, and the principal is bound by the ratification or adoption of its agent if the agent had authority to do the thing which he ratified or adopted. Mound City Mut. Life Ins. Co. v. Huth, 49 Ala. 539. The distinction made between ordinary partnerships and mining partnerships does not interfere with the above principles in their application to the present case. The objection urged by appellant to the third instruction given on the part of appellee cannot be sustained, since the instruction contains no fatal error. It is true the instruction is inartificially framed, but the propositions of law contained therein are substantially correct. The first proposition is based upon the theory that the defendants "authorized or permitted" their agent Robinson to act generally for them in and about their business in and about Leadville, and that, acting under such authority, he made the contract in question, and deposited it in a proper place in the office of the company. The jury is then informed that if such be the facts, and that the company proceeded through their agent Wick, without objection, to perform the contract on its part, they may find either an original authority in the agent or a ratification by the principal. The second proposition relates wholly to a ratification of the act of the agent Robinson by the company, after full information through Wick of the existence of the contract. This proposition is, that if defendants, through Wick, after being fully informed of the making of the contract proceeded to acknowledge its validity, and to act under it by receiving and paying for the coal as delivered, the jury may conclude from such transactions that the company ratified the contract. The legal propositions here laid down do not seem to be in conflict with the views which we have advanced, nor with the authorities cited in support thereof. The remaining questions presented by the record are of minor im portance, and may be briefly disposed of. The second and tenth assignments of error relate to the measure of damages, and involve one interrogatory and one instruction to the jury. The plaintiff was asked upon the witness stand the following question: "Mr. Armstrong, what was the market price of charcoal on the nineteenth day of June, 1879 ?" The objection made at the time was a general one. The specific point now made is that the inquiry was not limited to some place in particular. Had this objection been made at the time, it is probable that the question would have been changed so as to obviate the objection raised. A similar objection was made to the second instruction. It lays down the rule of damages in case the jury find for the plaintiff to be the difference between the contract price and the market value of charcoal at the time the defendants refused to carry out the contract. That the element of place was not mentioned in the question to the witness, and in the instruction to the jury, cannot be held to be error in the present case, for the reason that no other market place than Leadville was referred to in the trial of the cause. It was therefore impossible for the jury to have misunderstood to what place the testimony and the instruction referred. We are also of opinion that the rule of damages laid down by the court was correct. The fourth assignment of error relied upon was the overruling by the court of appellants' objection to the question propounded to the witness Gerrish requiring him to state whether, during the time the coal was being delivered and used at the furnace, he heard any objections made to its quality. The answer to the question was, "None whatever." It is argued that this answer, was misleading to the jury because no relations existed between appellants and the witness Gerrish which required appellants to complain to him or in his presence of the charcoal. The question appears to have been a proper one, considering the qualifications and opportunities of the witness to judge of the quality of the coal delivered. The testimony of Mr. Gerrish shows that he was employed as an expert in the works to assist Robinson in getting them properly started; that he was familiar with the smelting of ores; was by profession a metallurgist, having had, as he states, a good many years' experience in smelting ores with the use of charcoal; and that the duties imposed on him by the appellauts were to instruct the men how to mix the ores and coal to make it burn, and how to prepare their furnace in order to make it run. In reference to this process of smelting by the use of charcoal he states that he was the first to introduce it into Leadville. It also appears from the testimony of this witness that he was in the employ of the appellants a sufficient length of time to be able to judge of the character of the charcoal being delivered by Mr. Armstrong. In addition to answering the question that he heard no objection whatever to the coal delivered by Armstrong, he said he had remarked, on seeing some of the coal delivered, that it was the best charcoal he ever saw burned in pits, and that he heard no complaint from Robinson. Another objection is that the question referred simply to the character and quality of the coal being delivered, whereas the testimony shows that it was also to be free from stones and dirt. The contract was in writing, and in reference to the character and quality of the charcoal it merely says that the appellee was to deliver "75,000 bushels of well-burned charcoal." The eighth assignment questions the correctness of an instruction given by the court upon its own motion relating to the allowance of interest upon the sum admitted to be due the appellee at the time of the refusal to receive any more coal upon the contract. The jury were instructed to allow interest at the rate of 10 per cent. per annum upon the sum of $485.47, admitted to be due appellee, but not to allow interest on the sum contested, if they should find the appellee entitled to any other or further sum of damages. This assignment is considered in connection with the sixth assignment of errors, which latter assignment relates to an instruction prayed for by appellants and refused by the court. The latter instruction asked the court to instruct the jury that if the appellants, before suit brought, had tendered the sum of $485.47, without any restrictions, in payment of the amount then due appellee for charcoal delivered, and that he refused to receive it, no interest should be allowed upon such sum. We have considered the evidence relating to the tender; and the testimony of defendant Wick, alone, shows that no unconditional tender was made. There was therefore no error in giving the appellee's instruction, or in refusing that prayed for by appellants. We have examined all the errors assigned, and find none of sufficient importance to justify a reversal. The judgment is affirmed. (9 Colo. 29) RANDOLPH and another, Adm'r, etc., v. HELPS and others. 1. LANDLORD AND TENANT-LEASE-PROVISION FOR PAYMENT IN CASE OF SALE -SURRENDER. A provision in a lease looking to the payment for the improvements made by the lessor, in cåse of sale, does not necessarily imply a surrender of the lease in such an event. 2. CONTRACT-WRITTEN CONTRACT-CONSTRUCTION-RULE. Where the words of a contract are free from ambiguity in themselves, and no doubt or difficulty arises as to their meaning or application, they are to be construed and applied in their plain and general acceptation. 3. SAME-EVIDENCE-PAROL EVIDENCE-WRITTEN INSTRUMENT. Parol evidence is admissible to explain or apply the writing, but not to add to or vary its terms. Error to district court Boulder county. The complaint alleges that on October 6, 1881, William Stimson was the owner in fee of S. W. 4, section 21, township 1 S., range 70 W., in the county of Boulder, Colorado; that on said day he leased the same to the defendants for the purpose of mining for coal, and defendants took possession of the same; that by the terms of the lease it was provided that if said Stimson should sell the leased. premises during the term of the lease, the said Stimson should pay to the defendants the value of all improvements placed upon said premises, and that the defendants should deliver up said premises to said Stimson or his vendee, and that the term of the lease should then terminate; that said Stimson sold the premises leased June 7, 1882, to the plaintiff; that he immediately gave notice thereof to the defendants, and offered to make the appraisement called for by the terms of the lease, and to pay to defendants the value of the improvements made by them; that the defendants refused to receive the value of their improvements and refused to surrender up the possession of the premises, either to Stimson or to the plaintiff, his grantee; that the value of his improvements is $200; that the said Stimson and the plaintiff are willing and offer to pay for the same; that both Stimson and the plaintiff have demanded, in writing, of the defendants, the possession of the said premises, but defendants refuse to deliver possession of the same, and unlawfully hold over, contrary to the statute; that the use and occupation of the said premises is of the monthly value of $100; that plaintiff is damaged by the detention $100 per month. Plaintiff prays for judgment for the restitution of the premises, for $2,000 for use and occupation thereof, for damages, and for costs of suit. The answer admits the ownership of Stimson, and the leasing of the premises as alleged in the complaint; admits that defendants took possession of the same, and alleges that the lease was in writing; denies that they ever entered into a lease with a provision for a forfeiture in case the lessor should sell the premises, or into any lease containing the stipulations as alleged by the plaintiff; that the term of existence of said lease was not contingent on the sale of the premises by the lessor, and that no sale authorized the plaintiff to obtain possession of the premises, and the lease was never so understood by the parties thereto. * Replication by the plaintiff. Trial to the court, and judgment of nonsuit. R. H. Whitely, Wright & Griffin and R. D. Thompson for plaintiffs in error. G. Berkley, for defendants in error. ELBERT, J. The complaint alleges "that by the terms of the lease it was provided that, if Stimson should sell the leased premises during the term of the lease, the said Stimson should pay to the defendants the value of all improvements placed upon the premises, and that the defendants should deliver up the premises to Stimson, or his vendee, and that the term of the lease should then terminate." The only provision of the lease pertaining to this issue is as follows: "And it is further stipulated and agreed by the second party that if the first party should sell or dispose of his interest in said premises, said first party shall pay to said second party the appraised value of all the improvements of said second party on said premises, and, in the event of said appraisement, each of the two parties to this contract are to appoint a disinterested man; and if said two men cannot agree on the price of said improvements, said two men are to choose a third man, and a decision of a majority of said three men is to be the price of said improvements." Construing this provision according to the settled rules applicable to the case, collecting the intention from the context and words used, it cannot be said that it was agreed between the contracting parties that the lease was to terminate upon the sale of the leased premises by the lessor. We find, by its terms, a plain and unambiguous provision for the appraisement of the improvements on the leased premises in case of sale, and for the payment of the appraised value by the lessor; but there is nothing in its terms to the effect that the lessees, in case of sale, shall deliver up the premises to Stimson or his vendee, or that the term of the lease shall terminate. If such was the intention of the contracting parties, they did not express it in their written contract; nor is there any attempt to express such an agreement. It is not the case of an imperfect expression of intention, but one of entire omission, if the intention existed. Payment for the improvements in case of sale may seem unusual, without surrender of the lease, but we cannot say that a surrender is necessarily implied from such a provision. Some very different consideration, known to the parties and unknown to us, may have influenced them. We cannot proceed upon conjecture, and by implication add a provision to the lease which defeats the leasehold estate granted by its express terms. On its face, it is an entire contract, and purports to express fully the intention of the parties. On the trial below "the plaintiff offered to prove, in support of the lease, that the declared intention of the parties at the time, in using the language set forth in the lease, was that upon a sale of the property by Stimson the possession was to be delivered to Stimson, or his vendee." The language of the offer, taken in connection with the terms of the provision, leaves it in doubt whether the purpose was to explain the language used in the lease, or to show a contemporaneous parol understanding. It was not admissible for either purpose in this case. It is a familiar rule that extrinsic evidence is not admissible, either to contradict, add to, subtract from, or vary the terms of a written instrument. The rule applies with greater force to all agreements required by the statute of frauds to be in writing; but, as the effect of a defeasance is claimed for the provision, we apply the rule as to a writing not within the statute of frauds and say: (1) Where the words of the contract are free from ambiguity in themselves, and no doubt or difficulty arises as to their meaning or application, they are to be construed and applied in their plain and general acceptation. Written instruments would be of but little value if evidence dehors were admissible to show an intention different from the plain intention expressed by unambiguous words. The language of a contract is the agreed repository of the intention of the parties, and from it, when free from ambiguity, they cannot be allowed to appeal to the less cer |