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whether other makers of the article use these words in various senses, or use other words to express the alleged meaning. Because the main question is always this: Can it be said that both parties must have used, or ought to have used, these words in this sense, and that each party had good reason to believe that the other party so used them? Thus when the brief but violent “Morus multicaulis” (or mulberry) speculation prevailed, a few years ago, a man made a contract to sell and deliver a certain number of the trees "a foot high;" and the buyer was permitted to prove that, by the usage and custom of all who dealt in that article, the length was measured to the top of the ripe wood only, rejecting the green and immature top; and the "foot high" was to be so understood.
No custom, however, can be proved or permitted to influence the construction of a contract, or vary the rights of the parties, if the custom itself be illegal. For this would be to permit, or even oblige, parties to break the law, because others had broken it.
Nor would the courts sanction a custom which was in itself unreasonable and oppressive. There was a vessel cast ashore on the coast of Virginia, and the master sold the cargo on the spot; and on trial the jury found that he was authorized to do so by the usage there; but the Supreme Court of Massachusetts, where the ship and cargo were insured, said that the usage was unreasonable, and they would not allow it. The Supreme Court of Pennsylvania in one case refused to allow a usage, as unreasonable, by which plasterers charged half the size of the windows at the price per square yard agreed on for the plastering of a house.
Lastly, no custom, however universal, or old, or known (unless it has actually become a law), has any force whatever, if the parties see fit to exclude and refuse it by words of their contract, or provide that the thing which the custom affects shall be done in a way different from the custom. For a custom can never be set up against either the express agreement or the clear intentions of the parties.
I will now give forms for various agreements or contracts:
FORMS OF CONTRACTS OR AGREEMENTS Every agreement should be written, and signed oy both parties, and witnessed, where this can be done; although the law absolutely requires witnesses in very few cases, and in none of mere contract. It is prudent, however, to have them, foi it is a rule of law, that things which cannot be proved and things which do not exist are the same in the law.
Everything agreed upon should be written out distinctly, and care should be taken to say all that is meant, and just what is meant, and nothing else; for it is a rule of law, that no oral testimony shall control a written agreement, unless fraud can be proved. Against fraud nothing stands.
(6.) 1.-A General Agreement, sufficient for many purposes.
MUTUAL AGREEMENT OF TWO.
A. B. of (place of residence, and business or profession), and C. D. of (as before), have agreed together, at (place), on (the day should always be named), and do hereby promise and agree to and with each other, as fol. lows: A. B., in consideration of the promises hereinafter made by C. D. (if there are any such promises), and of (here state any other consideration which A. B. has), promises and agrees to and with C. D., that (here set forth, as above directed, the whole of what A. B. undertakes to do.)
And C. D. in consideration (set forth consideration and promise as before.) Witness our hands, to two copies of this agreement interchangeably.
in the year
A General Agreement, as used in the Western States.
Articles of Agreement, Made this of our Lord one thousand nine hundred and
between party of the first part, and
party of the second part, Witnesseth, That the said party of the first part hereby covenants and agrees, that if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on
part to be made and performed, the said party of the first part will
And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of
dollaas, in the manner following:
dollars cash in hand paid, the receipt whereof is hereby acknowledged, and the balance
with interest at the rate of per centum per annum, payable annually.
And in case of the failure of the said party of the second part to make either of the payments, or perform any of the covenants on
part hereby made and entered into, this contract shall, at the option of the party of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by sustained, and
shall have the right to
It is mutually agreed that all the covenants and agreements herein contained shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties.
In Witness Whereof, The parties to these presents have hereunto set sheir hands and seals, the day and year first above written.
(Signatures.) (Seals.) Signed, Sealed, and Delivered in presence of
(8.) General Contract for Mechanics' Work. Contract made this
A. D. 19
by and between of of the first part, and
of of the second part, Witnesseth, That the party of the first part, for the consideration hereinafter mentioned, covenants and agrees with the party of the second part to perform in a faithful and workmanlike manner the following specified work, viz. :
And in addition to the above to become responsible for all materials delivered and receipted for, the work to be commenced
and to be completed and delivered free from all mechanic or other liens, on or before the
And the party of the second part covenants and agrees with the party of the first part, in consideration of the faithful performance of the above specified work, to pay to the party of the first part the sum of
dollars, as follows:
And it is further mutually agreed by and between both parties, that in case of disagreement in reference to the performance of said work, all questions of disagreement shall be referred to
and the award of said referees or a majority of them, shall be binding and final on all parties,
In Witness Whereof, We hereunto set our hands and seals on the day and year first above written.
(Signatures.) (Seals.) Executed in Presence of
(9.) An Agrooment for Purchase and Sale of Lands, in Use in
the Middle States. Agreement, Made and concluded the day of 19 by and between
of the State of
of the first part, and of the State of
of the second part, Whereas, The party of the second part hath agreed to purchase from the party of the first part, either on his own account or for whom it may con
land in Township, County, and State of
A. D. 19
And it is agreed that the party of the second part shall have the right to
and reserving to his own use any amount for which the whole or any be sold over the said dollars.
And these Articles further Witness, That the party of the first part, for and in consideration of the premises and the sum of lawful money, to him paid by the party of the second part, at and before the execution hereof, doth covenant, promise, grant, and agree, with the party of the second part, his heirs and assigns, upon sale of said lands being made by the party of the first part, to sufficiently grant, convey, and assure said lands, with the appurtenances, to the said party of the second part, or such person or persons as he may direct; and in default of the said party of the second part paying the amount hereinbefore specified at the time mentioned, then these articles are to be deemed and considered canceled to all intents and purposes, the same as though they never had been made.
In Witness Whereof, The parties hereto have hereunto set their hands and seals the day and year first aforesaid.
(Signatures.) (Seals.) Sealed and Delivered in Presence of
(10.) An Agreement for Sale of Land, in Use in the Western
States. Articles of Agreement, Made this
in the year one thousand nine hundred and
of the first part, and
of the second part,
Witnesseth, That the party of the first part, at the request of the party of the second part, and a consideration of the money to be paid, and the covenants as herein expressed to be performed by the party of the second part (the prompt performance of which payments and covenants being a condition precedent, and time being of the essence of said condition), hereby agree to sell to the said party of the second part, all certain lot and parcel of land, situate in
and State of known and designated as follows, viz. :
with the privileges and appurtenances thereto belonging.
And the said party of the second part, in consideration of the premises, hereby agrees to pay the party of the first part, his or their executors, administrators, or assigns,
days, the sum of
dollars, as follows, viz. :
with interest at the rate of
per cent. per annum from be paid semi-annually in each year, on the whole sum from time to time remaining unpaid. And also that he will well and faithfully, in due season, pay, or cause to be paid, all ordinary taxes assessed for revenue purposes upon said premises, or any part thereof, subsequent to the year 19. Ana also all other assessments which now are, or may be hereafter, charged or assessed upon or against said premises, or any part thereof.
But in casc the said party of the second part fail to pay any or all such taxes or assessments upon s : 1 premises or appurtenances, or any part thereof, whenever and as soon as the same shall become due and payable; and the party of the first
pay irom time to time, or at any time, any or all such taxes or assessments, or cause the same to be paid, the amount of any and all such payments so made by the party of the first part, with interest thereon from the date of payment, shall immediately thereupon become an additional consideration, and payment thereof shall be made by the party of the second part hereto, for the premises herein agreed to be conveyed.
And the said party of the first part further covenants and agrees with the said party of the second part, that upon the faithful performance by said party of the second part of undertaking in his behalf, and of the payment of principal and interest of the sum above-mentioned in the manner specified, he the said party of the first part, shall and will, without delay, well and faithfully execute, acknowledge, and deliver in person, or by attorney duly authorized, to the party of the second part, heirs or assigns, a deed of conveyance of all the right, title, and interest of the party of the first part, of, in and to the above described premises, with the appurtenances, with full covenants of warranty, also of waiver and release of all rights of the said party of the first part, resulting from the laws of this State pertain ing to the exemption of homesteads.
And it is Mutually Covenanted and Agreed, by and between the parties hereto, that in case default shall be made in the payments of principal