same words; or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special sense (g). And the same rule has been thus stated words are to be construed according to their strict and primary acceptation, unless, from the instrument itself and the intention of the parties to be collected from it, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect (h).

66

CH. V. s. 5. Construction of Contracts (Popular Meanings).

"Forthwith.

And, in like manner, where a contract is to be performed "Directly." directly," this does not mean "within a reasonable time;" but "speedily," or, at least, as soon as possible (i). So an agreement to do an act "forthwith" means that it shall be done "without delay or loss of time" (k); and commissions on net "Net proceeds of a homeward cargo mean commissions only on the proceeds.'' actual sums realised by sales (1).

Instructions to a coal factor to sell coal at such a price as will realise not less than 15s. per ton "net cash" less commission may be construed as authorising a sale on credit if a credit sale be the custom of the trade (m).

"Net cash."

The words, "say about" in a charter-party for loading "a Say about.” full and complete cargo, say about 1,100 tons " have been held

not to be satisfied by a cargo of 1,080 tons in a case where the

actual capacity was 1,200 tons (n).

"Cargo" means the entire load of the ship which carries it (o). "Cargo. So the words "laying a prosecution," in this agreement, must "Prosecu be taken to mean, not bringing an action, but preferring an indict- tion.' ment or information, such being the ordinary meaning of the words (p); and the words "become insolvent " were held to refer Insolvent,' to a general inability to pay debts, and not to the fact of taking the benefit of the since repealed Insolvent Debtors Act-there being nothing in the context so to restrain them (q).

The primary meaning of "month" in legal documents is "Month." "lunar month," and there is no general exception making it Bruner v.

(g) Per Lord Ellenborough, Robertson v. French (1803), 4 East, 130, 135; 7 R. R. 535.

(h) Per Cur., Mallan v. May (1844), 13 M. & W. 511; and see Tielens v. Hooper (1850), 5 Exch. 830. Therefore, words which are primâ facie synonymous, ought to be so construed, and the Court is not bound to give a separate meaning to each word. See per Jessel, M.R., Ex parte Moor (1878), 10 Ch. D. 530, C. A.

(i) Duncan v. Topham (1849), 8 C. B. 225.

(k) See per Lord Chelmsford, Roberts v. Brett (1865), 34 L. J., C. P. 241, 247,

in H. L.

(1) Caine v. Horsfall (1847), 1 Ex. 519; 2 C. & K. 349.

(m) Boden v. French (1851), 10 C. B. 886; 20 L. J., C. P. 143 (two months' credit).

(n) Morris v. Levison (1876), 1 C. P. D. 155.

(0) Borrowman v. Drayton (1876) 2 Ex. D. 15, C. A.

(p) Rawlins v. Jenkins (1843), 4 Q. B. 419, 421.

(9) Biddlecomb v. Bond (1835), 4 A. & E. 332; and see Parker v. Gossage (1835), 2 Cr., M. & R. 617.

Moore.

C'H. V. s. 5.

mean calendar month

in commercial documents. It can only

Construction bear that meaning where according to the ordinary rules of construction a secondary meaning can be admitted. So it was laid down by Farwell, J., in Bruner v. Moore (r).

of Contracts (Popular Meanings).

Exception to rule that popular sense is to be adopted.

Mercantile contracts.

And the rule we are now considering is liable to one exception, viz., that the ordinary and more extensive meaning of the words used in an agreement ought to be departed from, where they involve an absurdity; or where, if so construed, they would entail upon the contractor a responsibility, which it cannot reasonably be presumed he meant to assume (s). Thus, a covenant to pay money, at such time as should be appointed by the creditor “by notice in writing sent by post, or delivered to or left at the house or last known place of abode " of the debtor, has been held to impose on the creditor the necessity of allowing a reasonable time to elapse between the giving of a notice and the day of payment (t). And where a person covenants to pay money or do any other act "immediately," or "upon demand," he shall have a reasonable time to do the act, according to the nature of the thing to be done (u).

In cases of mercantile contracts the words employed may, by usage, bear a very different meaning from their natural one; and such meaning may be made matter of evidence. Hence it is, that mercantile contracts are to be construed according to the usage and customs of merchants (x); and, accordingly, when they contain peculiar expressions which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of these expressions is, although it is for the Court to decide what is the meaning of the contract (y).

The whole

SECT. 6.-Whole Contract to be Considered.

Another rule is, that every contract is to be construed with contract is to reference to its object, and the whole of its terms (2), and accordingly, the whole context must be

be considered.

(r) Bruner v. Moore, [1904] 1 Ch.
305; and see post, Ch. XXII., sect. 3.
(s) See Pribble v. Boghurst (1818), 1
Swanst. 309, 329.

(t) Brighty v. Norton (1862), 3 B. & S.
305.

(u) Com: Dig. Condition (G. 5); Toms v. Wilson (1862), 4 B. & S. 442; Massey v. Sladen (1868), L. R., 4 Ex. 13.

(2) Per Gibbs, C.J., Gibbon v. Young (1818), 8 Taunt. 254.

considered in endeavouring to

(y) Per Parke, B., Hutchison v. Bowker (1839), 5 M. & W. 535.

(2) Per Wilde, C.J., Richards v. Bluck (1848), 6 C. B. 437 (S. C.), and see Turner v. Evans (1853), 2 E. & B. 512; Reid v. Fairbanks (1853), 13 C. B. 692, 730; Bourne v. Seymour (1855), 16 C. B. 337; Gage v. Newmarket Railway Company (1852), 18 Q. B. 457, at p. 468; Mason v. Cole (1849), 4 Exch. 375.

Whole Contract to be Considered.

collect the intention of the parties, even although the immediate CH. V. s. 6. object of inquiry be the meaning of an isolated clause (a). Ex antecedentibus et consequentibus fit optima interpretatio (b). Thus in the case of a bond with a condition, the condition may be read, in order to explain the obligatory part of the instrument (c); and in determining the meaning of words which are used for the purpose of designating periods of time, such as the words "from" and "until," the whole contract is to be taken into consideration (d). So, when the meaning of a contract for services is ambiguous, the Court will take into consideration even the price agreed to be paid for those services for the purpose of enabling them to determine the extent of the service to be rendered under the contract (e). So, in a covenant to pay so much for every statute acre of coal which should be found under certain lands, and, until the price should be fully paid, to pay part of the said price every year, whether the whole of an acre of coal should be gotten in every such year or not; the word "found" was construed to mean-contrary to its strict and primary meaning" ascertained to lie and be;" because the instrument, taken as a whole, showed that the price was to be paid for coals "found" and not for coals "gotten" (f).

So, where the contract was, to deliver to the buyer a quantity of cotton "in merchantable condition, the damaged, if any, to be rejected provided it cannot be made merchantable: " it was held that the buyer was entitled to have the cotton made merchantable before he accepted it (g). And where the words were :-" We hold at your disposal 1,000 tons of pig iron, which we engage to deliver to your order, free of all charge into boats, on the presentation of this document duly indorsed by you: " it was held that, "presentation" meant delivering up the document, and not merely showing it (h).

And when it is clear from the context in what sense words are used, the sound rule of construction is to give them that meaning, even although the words be technical, and have, technically, a different meaning (i).

(a) See Browning v. Wright (1799), 2 B. & P. 13; Stavers v. Curling (1836), 3 Scott, 740; S. C. nom. Stevens v. Curling, 3 Bing. N. C. 355.

(b) Plowd. 160. See per Hobart, C.J., Trenchard v. Hoskins (1625), Winch, 93; per Lord Ellenborough, Barton v. Fitzgerald (1812), 15 East, 530; 13 R. R.

519.

(c) Coles v. Hulme (1828), 8 B. & C. 588. (d) Wilkinson v. Gaston (1846), 9 Q. B. 137; Rex v. Stevens (1804), 5 East,

244.

(e) Per Bayley and Vaughan, BB., Allen v. Cameron (1833), 1 C. & M. 832.

(f) Jowett v. Spencer (1847), 1 Exch. 647, Ex. Ch. ; and see Clifford v. Watts (1870), L. R., 5 C. P. 577.

(g) Morgan v. Gath (1865), 3 H. & C. 748.

(h) Bartlett v. Holmes (1853), 13 C. B. 630.

(i) Per Coleridge, J., Graham v. Ewart (1856), 1 H. & N. 550, Ex. Ch. ; per Blackburn, J., Musgrave v. Foster (1871), L. R., 6 Q. B. 590, 596.

CH. V. s. 6.
Whole

So, however plain the grammatical construction of a sentence Contract to be may be, if it be clear from the contents of the instrument that the Considered, apparent grammatical construction cannot be the true one; then Grammatical that which, upon the whole, is the true meaning shall prevail, construction in spite of the grammatical construction of such particular sentence (k).

may be dis

regarded.

General

words, how construed.

Generis Rule.

Sandiman v.

Breach.

As to the construction of general words, the rule is, verba generalia restringuntur ad habilitatem rei vel personam (1). Thus, general words in a grant must be understood with reference to the estate which was in the grantor, at the time of the grant (m). And the rule which is laid down with reference to the construction of statutes-namely, that where several words preceding a general word point to a confined meaning, the general word shall not have such a meaning as to extend its effect beyond subjects The Ejusdem ejusdem generis (n)—would seem to apply equally to the construction of contracts (o). Indeed it follows as a corollary to the rule of construction we are now considering; its meaning being simply, that every word shall be construed in conjunction with the words that accompany it. Where, therefore, a lease contained a proviso for an abatement of rent in case the demised premises should, at any time during the term, "be destroyed or damaged by fire, flood, storm, tempest, or other inevitable accident;" it was held that the words "inevitable accident" must be construed by the rule of ejusdem generis—that is, that they must be taken to mean accident of a kind similar to "flood, fire, storm, or tempest," and not to include accidents occasioned by the acts or defaults of the contracting parties (p). And so, in construing a covenant to keep premises in proper repair and condition, so as to be fit for a particular purpose, the maxim noscitur a sociis is in general applicable, and the covenant will be held primâ facie to relate to their physical condition only (q).

Noscitur a sociis.

When con

trolled by recitals.

And it is upon the principle of this rule that, when the words in the operative part of an instrument are of doubtful meaning, the recitals may be used as a test, to discover the intention of the parties, and to fix the true meaning of those words (r).

(k) Per Cur., Waugh v. Middleton (1853), Exch. 352.

(1) See West London Railway Company v. London and North Western Railway Company (1853), 11 C. B. 327, 356, Ex. Ch.

(m) Booth v. Alcock (1873), L. R., 8 Ch. 663; and see Boddington v. Robinson (1875), L. R., 10 Ex. 270.

(n) Per Lord Denman, C.J., Reg. v. Nevill (1846), 8 Q. B. 452: per Lord Tenterden, C.J., Sandiman v. Breach

(1827), 7 B. & C. 96.

(0) See Harrison v. Blackburn (1864), 17 C. B., N. S. 678.

(p) Saner v. Bilton (1878), 7 Ch. D.

815.

(q) See Newby v. Sharpe (1878), 8 Ch. D. 39, C. A.

(r) Per Cur., Walsh v. Trevanion (1850), 15 Q. B. 733, 751; and see per Jessel, M.R., Re Michell's Trusts (1878), 9 Ch. D. 5 and 9, C. A.; Rooke v. Kensington (Lord) (1856), 25 L. J., Ch. 795.

CH. V. s. 6.

Whole Contract to be Considered.

When not.

be inferred from recitals.

But clear words in the operative part of an instrument cannot be controlled by the recitals (s); though clear recitals control operative parts if ambiguous, and if both be clear, the operative parts prevail (t). Where words of recital or reference manifest a clear intention Contract may that the parties should do certain acts, the Courts infer from them an agreement to do such acts, just as if the instrument had contained an express agreement to that effect (u). Thus where, in a deed, a party unequivocally admits that he is liable to pay a sum of money, a covenant that he will pay it may be implied, unless the deed shows that the acknowledgment of the debt was inserted therein for some other purpose (x). And so, in Sampson v. Easterby (y), where a lease of an undivided third part of certain mines contained a recital of an agreement, made by the lessee with the lessor and the owners of the other two-thirds, for pulling down an old smelting-mill, and building another of larger dimensions; and the lease also contained a covenant to keep such new mill in repair, and so to leave it at the expiration of the term; but did not contain a covenant to build it :-it was held, that such covenant was to be implied, and that the lessor of the onethird might maintain an action of covenant upon it in respect of his interest.

Even, however, where there is no recital, general words in an When reagreement will be qualified by a subsequent special provision, strained by unless full effect can be given to both parts of the instrument, visions. without altering or modifying either (z). Thus where, in a lease of a colliery, there was a covenant to pay as rent, "one-third part of the money that should arise, be made, received or produced from the sale of the coals"; and also a covenant to keep true accounts of all coal daily raised, and to make and deliver true copies thereof to the lessor: " it was held that, taking the two covenants together, the rent was to be calculated on the amount of coals sold, and not on that of money received (a). And where a bill of sale assigned to R. all the household goods and furniture of every kind in a house, more particularly mentioned in an inventory, which did not mention all the goods in

66

(s) Walsh v. Trevanion (1850), 15 Q. B. 733, 751; Dawes, Ex parte, Moon, In re, 17 Q. B. D. 275, C. A.

(t) Dawes, Ex parte, Moon, In re, ubi supra.

(u) Aspdin v. Austin (1844), 5 Q. B. 671; and see Farrall v. Hilditch (1859), 5 C. B., N. S. 840; Courtney v. Taylor (1843), 6 M. & G. 851; Marryatt v. Marryatt (1860), 29 L. J., Ch. 665; Great Northern Rail. Co. v. Harrison (1852), 12 C. B. 576, 609; Saltoun v.

Houston (1824), 1 Bing. 433.

(x) See per Tindal, C.J., and Maule, J., Courtney v. Taylor (1843), 6 M. & G. 851; Jackson v. North Eastern Rail. Co. (1877), 7 Ch. D. 573.

(y) Sampson v. Easterby (1830), 1 C. & J. 105, Ex. Ch.

(z) See Rigby v. Great Western Railway Company (1849), 4 Exch. 220, 229. (a) Edwards v. Rees (1836), 7 C. & P. 340.