It was the duty of the Judge to put a-construction upon the instrument sued on. His Honor performed this duty in part, by holding, “there was a condition precedent, and it was incumbent on the plaintiff to prove its performance.” He then leaves it to the jury to find whether it was or was not a good gold mine at the time the note was payable.
Erom this we assume his opinion to be, that by the true construction of the instrument, it was for the plaintiff to satisfy the jury, that it was a good gold mine, according to the estimation of miners, at the time referred to ; in other words, that the meaning of the instrument was, the defendant is not to pay, unless the mine proves to be a good gold mine, at the end of the year; treating the word “ continues ” as surplusage and giving to it no force; so, as in effect to make the plaintiff undertake to guarantee that the' mine at the end of the year would prove to be a good one, absolutely, and without reference to any other consideration, save what is a good gold mine according to the estimation of miners.
This Court is of opinion that such is not the meaning of the instrument, having regard to well settled rules of construction, e. g., “Every word of an instrument should (if *152possible) be made to have some operation.” “ Words are to be taken most strongly against the party using them.” Eor self interest prompts a man to select words that do not run to his prejudice, outside of his own intention.
The mine was not a new one, but had been previously ■opened and worked by other persons; the plaintiff and defendant both had access to this means of information, and the words “ continues to prove a good gold mine at the end of twelve months” amount to this; the mine has proved to be a good gold mine so far, in the estimation of the parties. Now in the event it continues to prove a good gold mine at the end of the year, the price is to be paid, otherwise not; thus making the plaintiff guarantee that the mine will not turn out to be any less good, at the end, than it was at the beginning; so that should the vein give out, or prove, on being followed, of less thickness, or the ore be of less richness than it has now proved, the defendant is not to pay for it.
This construction gives full force to the word “continues,” and to the word “proves” by having reference to the fact that the mine had been previously worked. It is well settled that in putting a construction, facts existing at the time to which the words used point, may be proved “ as a key to the meaning.” The condition of a testator’s family and estate may be proved to aid in arriving at his meaning. The mischief which a statute is intended to remedy may be taken into consideration by the Court, in order to fix the meaning of the words used, so as to correct the mischief, andavoid carrying the operation of a statute too far, or stopping short of the mischief.
In our case the word “continues” would not have been inserted, unless the parties intended to convey some meaning by the use of it; what that meaning was is made clear by the fact that the mine had been previously worked, and as miners say “tested.” But for this fact, the word “ con*153timies ” would be senseless and unmeaning, and of course would not have been used; connected with this fact, it is pertinent and controlling. To give effect to it, Ms Honor ought to have submitted to the jury the question: Did the mine continue to be as good a mine at the end of the year as it was at the beginning, or did it fall off and prove to be worse to such a degree as not to be worth worMng?
There is error.
Per Curiam. Venire de novo.