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of the parties. And if a contract is false to the actual meaning and purpose of the parties, or of either party, the remedy does not lie in construction; but, if the plaintiff be the injured party, in assuming the contract to be void, and establishing his rights by other and appropriate means; or, if the defendant be injured by defending against the contract on the ground of fraud or mistake, if the facts support such a defence.

A construction which would make the contract legal is preferred to one which would have an opposite effect; and by an extension of the same principle, where certain things are to be done by the contract which the law has regulated in whole or in part, the contract will be held to mean that they should be done in such a way as would be either required or indicated by the law.

The question may be whether the words used should be taken in a comprehensive or a restricted sense; in a general or a particular sense; in the popular and common, or in some unusual and peculiar sense. In all these cases the court will endeavor to give to the contract a rational and just construction; but the presumption-of greater or less strength, according to the language used, or the circumstances of the caseis in favor of the comprehensive over the restricted, the general over the particular, the common over the unusual


It is a rule that the whole contract should be considered in determining the meaning of any or of all its parts. The reason is obvious. The same parties make all the contract, and may be supposed to have had the same purpose and object in view in all of it, and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of those which are clear. Thus, the condition of a bond may help to explain the obligatory part. And the recital in a deed or agreement has sometimes great influence in the interpretation of other parts of the instrument. The contract may be contained in several instruments, which, if made at the same time, between the same parties, and in relation to the same subject, will be held to constitute but one contract, and the court will read them in such order of time and priority as


wili carry into effect the intention of the parties, as the same may be gathered from all the instruments taken together. And the recitals in each may be explained or corrected by a refer. ence to any other, in the same way as if they were only several parts of one instrument.

Another rule requires that the contract should be supported rather than defeated. The court cannot, however, through a desire that there should be a valid contract between the parties, undertake to reconcile conflicting and antagonistic expressions, of which the inconsistency is so great that the meaning of the parties is necessarily uncertain. Nor where the language dis tinctly imports illegality, should they construe it in a different and a legal sense, for this would be to make a contract for the parties which they have not made themselves. But where there is room for it, the court will give a rational and equitable inter pretation, which, though neither necessary nor obvious, has the advantage of being just and legal, and supposes a lawful contract which the parties may fairly be regarded as having made So, for the same reason, all the parts of the contract will be construed in such a way as to give force and validity to all of them, and to all of the language used, where that is possible.

All legal instruments should be grammatically written, and should be construed according to the rules of grammar. But this is not an absolute rule of law. On the contrary, it is so far Immaterial in what part of an instrument any clause is written that it will be read as of any place and with any context, and, if necessary, transposed, in order to give effect to the certain meaning and purpose of the parties. Still this will be done only when their certain and evident intent requires it. Inaccuracy or confusion in the arrangement of the parts and clauses of an instrument is, therefore, always dangerous; because the intent may in this way be made so uncertain as not to admit of a remedy by construction. Generally, all relative words are read as referring to the nearest antecedent. But this rule of grammar is not a rule of law, where the whole instrument shows plainly that a reference was intended to an earlier antecedent.

So, it is a general proposition, that where clauses are repug. nant and incompatible, the earlier prevails in deeds and other

instruments among the living, if the inconsistency be not so great as to avoid the instrument for uncertainty. But in the construction of wills it has been said that the latter course prevails, on the ground that it is presumed to be a subsequent thought or purpose of the testator, and therefore to express his last will

An inaccurate description, and even a wrong name of a per son, will not necessarily defeat an instrument. But it is said that an error like this cannot be corrected by construction, unless there is enough beside in the instrument to identify the person, and thus to supply the means of making the correction. That is, taking the whole instrument together, there must be a reasonable certainty as to the person. It is also said that only those cases fall within the rule in which the description so far as it is false applies to no person, and so far as it is true applies only to one. But even if the name or description, where erroneous, apply to a wrong person, we think the law would permit correction of the error by construction, where the instrument, as a whole, showed certainly that it was an error, and also showed with equal certainty how the error might and should he cor rected.

Instruments are often used which are in part printed and in part written; that is, they are printed with blanks, which are afterwards filled up; and the question may occur, to which a preference should be given. The general answer is, to the written part. What is printed is intended to apply to large classes of contracts, and not to any one exclusively; the blanks are left purposely, that the special statements or provisions should be inserted, which belong to this contract and not to others, and thus discriminate this from others. And it is reasonable to suppose that the attention of the parties was more closely given to those phrases which they themselves selected, and which express the especial particulars of their own contract, than to those more general expressions which belong to all contracts of this class. But if the whole contract can be construed together, so that the written words and those printed make an intelligible contract, this construction should be adopted. Because the intention of the parties is presumed to be "alive and active

throughout the whole instrument, and that no averments are anywhere inserted without meaning and without use."



THERE are some general presumptions of law which may be considered as affecting the construction of contracts.

Thus, it is a presumption of law that parties to a simple contract intended to bind not only themselves, but their personal representatives; and such parties may sue on a contract, although not named therein. Hence, as we have seen, executors, though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the lifetime of their testator. And if the contract was not broken in his life time, they must not break it, but will be held to its performance, unless this presumption is overcome by the nature of the con tract; as where the thing to be done required the personal skill of the testator himself. So, too, if several persons stipulate for the performance of any act, without words of severalty, the presumption of law is here that they intended to bind themselves jointly. But this presumption also might be rebutted by the nature of the work to be done, if it were certain that separate things were to be done by separate parties, who could not join in the work.

It is also a legal presumption that every grant carries with it whatever is essential to the use and enjoyment of the grant. But this rule applies more strongly to grants of real estate than to transfers of personal property. Thus, if land be granted to another, a right of way to the land will go with the grant.

Where anything is to be done, as goods to be delivered, or the like, and no time is specified in the contract, it is then presumption of law that the parties intended and agreed tha the thing should be done in a reasonable time. But what is a reasonable time is a question of law for the court. They will consider all the facts and circumstances of the case in determining this, and if any facts bearing upon this point are in question it will be the province of the jury to settle those facts, although

the influence of the facts when they are ascertained, upon the question of reasonableness of time, remains to be determined by the court.



We have already had occasion to remark, that a custom which may be regarded as appropriate to the contract and com. prehended by it, has often very great influence in the construction of its language. The general reason of this is obvious enough. If parties enter into a contract, by virtue whereof something is to be done by one or both, and this thing is often done in their neighborhood, or by persons of like occupation with themselves, and is always done in a certain way, it must be supposed that they intended it should be done in that way. The reason for this supposition is nearly the same as that for supposing that the common language which they use is to be taken in its com. mon meaning. And the rule that the meaning and intent of the parties govern, wherever this is possible, comes in and operates. Hence an established custom may add to a contract stipulations not contained in it; on the ground that the parties may be supposed to have had these stipulations in their minds as a part of their agreement, when they put upon paper or expressed in words the other part of it. So custom may control and vary the meaning of words; giving even to such words as those of number a sense entirely different from that which they commonly bear, and which indeed by the rules of language, and in ordinary cases, would be expressed by another word.

This influence of custom was first admitted in reference to mercantile contracts. And indeed almost the whole of the lawmerchant, if it has not grown out of custom sanctioned by courts and thus made law, has been very greatly modified in that way. For illustration of this, we may refer to the law of bills and notes, insurance, and contracts of shipping generally. And although doubts have been expressed whether it was wise or safe to permit express contracts to be controlled, or, if not controlled, affected by custom in the degree in which it seems now to be established that they may be, this operation of custom is now

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