Wherever the literal interpretation of a contract will defeat the object of the parties, resort must be had to construction. In expounding agreements, we must conform, as nearly as the rules of law will allow, to the apparent intention of the parties. Again: in the construction of all instruments, the court must accord to a particular expression a controlling force, but the intention must be gathered from the whole writing; unless it be manifest that its author intended otherwise. The undertaking of the boat was to pay one dollar a day for the use of each of the spars;' and if they wore lost or injured, to pay eighty-five dollars, the' price agreed for the four. The obvious meaning of the parties was, that the owner should pay the stipulated hire for the spars, unless he failed to return them; in that event, he was to pay the sum which the parties had determined to be their value. The terms, lost or injured, are not to bo construed in their strictest sense, and as excluding every other cause which may have prevented their return, but they are to be understood as having been used to express the idea of a failure to return the spars, without reference to any particular cause therefor. The subject matter and nature of the contract do not warrant the conclusion, that these words were intended to control the meaning of the parties, and that the sentence in which they arc found should be literally interpreted. The popular sense is that in which we must suppose the parties intended to express themselves, without any special regard to etymology.

It was not intended that, in addition to the hire, (as it is called,) the spars themselves should be paid for, but the clear inference is, that if they were not returned, the properly in them vested in the owner of the boat from the time the plaintiff parted with their possession, and by paying the stipulated price, the liability to pay the hire was extinguished.

In the view taken of the contract, it was not necessary for the jury to have inquired whether it was a hiring or a sale — the legal effect of it might be either the one or the other, as the owner of *492the boat chose to treat it. In referring the inquiry to the jury upon this point, without informing them what was a sale and what a hiring, it may be questioned whether the county court did not err. But what has been already said, makes unnecessary the examination of the charge in this respect; and we will only add, that the judgment is reversed, and the cause remanded.