« iepriekšējāTurpināt »
ment, he would be offering evidence to affect the other part of the deed; and that he cannot do.
A legal inference from a written promise can no more be rebutted by evidence than if it were written. Thus, if A, by his note, promises to pay B a sum of money in sixty days, he cannot when called upon resist the claim by proving that B, when the note was made, agreed to wait ninety days; and if A promise in writing to pay money, and no time is set, this is by force of law a promise to pay on demand, and evidence is not receivable to show that a distant period was agreed upon.
Generally speaking, all written instruments are construed and interpreted by the law according to the simple, customary, and natural meaning of the words used.
It should be added, that when a contract is so obscure or uncertain that it must be set wholly aside, and regarded as no contract whatever, it can have no force or effect upon the rights or obligations of the parties, but all of these are the same as if they had not made the contract.
CUSTOM, OR USAGE.
A custom, or usage, which may be regarded as appropriate to a contract, has often great weight in reference to it. This it may have, first, as to the construction or meaning of its words; and next, as to the intention or understanding of the parties.
The ground and reason for this influence of a custom is this. If it exists so widely and uniformly among such persons as make the contract, and for so long a time, that every one of them must be considered as knowing it, and acting with reference to it, then it ought to have the same force as if both parties expressly adopted it; because each party has a right to thirk that the other acted upon it.
Sometimes this is carried very far. In one English case, a man had agreed to leave in a certain rabbit warren ten thousand rabbits, and the other party was permitted to prove that, by the usage of that trade, a thousand meant one hundred dozen, or twels-e hundred. In an American case, a man agreed to pay a carpenter twelve shillings a day for every man employed by him about a certain building; the carpenter was permitted to prove that, by the usage of that trade, "a day" meant ten hours' work; and as his men had worked twelve and a half, he was permitted to charge fifteen shillings, or for one and one-fourth days' work, for every day so spent.
In these cases the custom affected the meaning of the words. But it also has the effect of words; as if a merchant employed a broker to sell his ship, and nothing was said about terms, and the broker did something about it, and the ship was sold, if the broker could prove a universal and well-established custom of that place, that for doing what he did under the employment he was entitled to full commissions, he would have them, as much as if they were expressly promised.
Any custom will be regarded by the court, which comes within the reason of the rule that makes a custom a part of the contract. It comes within the reason only when it is so far established, and so well known to the parties, that it must be supposed that their contract was made with reference to it. For this purpose, the custom must be established and not casual, uniform and not varying, general and not personal, and known to all the parties. But the degree in which these characteristics must belong to the custom will depend in each case upon its peculiar circumstances. Let us suppose a contract for the making of an article which has not been made until within a dozen years, and only by a dozen persons. Words are used in this contract of which the meaning is to be ascertained; and it is proved that these words have been used and understood in reference to this article, always, by all who have ever made it, in one way. Then this custom will be permitted to explain and interpret the words of the parties. But if the article had been made a hundred years or more, in many countries and by multis tudes of persons, the evidence of this use of these words by a dozen persons in a dozen years would not be sufficient to give to this practice the force of custom.
Other facts must be considered; as, how far the meaning sought to be put on the words by custom varies from their common meaning in the dictionary, or from general use; and 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 60 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 by 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, for 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 bo 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 os before.) Witness our hands, to two copies of this agreement interchangeably.
(7.) 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
in the year
And the said party of the second part hereby covenants and agrees to pay to said party of the first part the sum of
dollars, 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
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
on this 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 their hands and seals, the day and year first above written.
(Signatures.) (Seals.) Signed, Sealed, and Delivered in presence of
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.