ASSUMPSIT, on a fire insurance policy. The case is the same as that reported in 81 N.H. 495. Trial by jury and verdict for the plaintiff. The defendant excepted to the denial of its motions for a non-suit and a directed verdict, to the admission of certain evidence, to remarks of plaintiff's counsel, to the refusal of the court to give certain requests for instructions, and to the charge.

It is also the law as the plaintiff contends, that a contract can be proved by spoken or written words or by acts or conduct (Dedes v. Dedes, 93 N.H. 215, 217) and that when there is a disputed question of fact as to the existence and terms of a contract it is to be determined by the trier of fact, in this case the jury. First Nat. Bank v. Hunton, 69 N.H. 509, 510; Fitch Co. v. Company, 81 N.H. 495, 497; White Mr. Nat. Bank v. Malloy, 93 N.H. 197, 199. Before such issues can be submitted to a jury for determination, however, there is a preliminary question of law for the Trial Court. Is there any evidence from which it could be found that there was a contract between the parties? Coles v. Railroad, 74 N.H. 425, 426; White Mr. Nat. Bank v. Malloy, supra.

The possibility of a finding that the minds of the parties did not meet remains to be considered. The plaintiff may have concluded from the negotiations that the bank had undertaken to pay him; the bank may have understood that its only duty was to make the loan. If the language used by the plaintiff and the defendant's treasurer was so ambiguous as to be reasonably capable of the differing interpretations, then each would be entitled to insist upon his own understanding, and there would be no contract. 1 Williston, Contracts, s. 95. See, also, Russell v. Clough, 71 N.H. 177; Fitch Company v. Insurance Co., 81 N.H. 495, 497; Eleftherion v. Company, 84 N.H. 32, 34, 35. In that event, the bank could not use the release to improve its position, and if it advanced only the sum of $1,650 on the strength of the release (the balance of the mortgage debt comprising previous loans), it would be obliged to account to the plaintiff for any value of the mortgaged property in excess of that sum. Nor could it, without such an accounting, repudiate its treasurer's act as unauthorized.