parties' views, as expressed in their contract,-courts will so construe their words as to give effect to their general intent. This is not only reasonable in itself, but is also manifestly conformable to the design of the parties, as displayed by the general spirit of their agreement.'

The rules of construction are, in general, the same in law and in equity; in simple contracts and contracts by specialty.' But courts of equity have greater powers than courts of law, to modify contracts according to subsequent exigencies. It sometimes happens that courts of law cannot afford an ample, or even any, remedy on a contract, on account of the necessary construction which they give it. But a court of chancery will enforce it cy pres; that is, as nearly in conformity to the terms of it, as is practicable: ut res magis valeat quam pereat. This is done at the instance of the promisee, when he prefers a partial execution of what he supposed to be his rights, to a total failure of his claim.

Language, however, is of itself imperfect and equivocal; and the manner in which it is used often increases the difficulty of acquiring clear and definite notions of the speaker's or writer's meaning. Mr. Locke's third book of his Essay concerning the Human Understanding is as useful to members of the legal profession, as to any other class of scholars; and his ninth, tenth and eleventh chapters, on the imperfection and abuse of words, and the remedies of those imperfections and abuses, are very pertinent to the subject of contracts and the interpretation of them.

This imperfection and abuse of language render it extremely important that certain fixed canons of interpretation should be adopted, in order to give a uniform effect to the stipulations of contracting parties, who resort to judicial tribunals for the enforcement of rights and redress of wrongs

1 See 3 Bur. 1634 ; 2 D. & E. 254; 1 Doug. 277.

2 2 Bur. 1108; 3 Bl. Com. 431.

13 East, 74, per Lord Ellenborough.

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arising from contracts and the breach of them. If rules of interpretation would be necessary (as we have seen) even were language clear and unequivocal, and the ideas of the parties precise and determinate-such rules become indispensable, when language itself is defective, and by an abuse and ignorance of it, men involve their agreements in what Mr. Roberts terms "amphibology of diction, and delitescency of meaning."

We shall attempt only a general statement of some of the most prominent rules of construction, and a few practical illustrations of those rules.

The first principle of construction, and that upon which rest all the rules, which will be hereafter mentioned, is this— namely, that the apparent intent of the parties shall be regarded, so far as the rules of law will permit: Verba intentioni, non e contra, debent inservire. The purpose of construction is to find the meaning of the parties; not to impose it.'

1. As a general rule, the terms of a contract are to be understood in their ordinary and popular sense, rather than in their strict grammatical or etymological meaning."

But it is as true in law, as in criticism on other subjects, that usage is to govern in the application of language:

si volet usus,

Quem penes arbitrium est, et jus, et norma loquendi.

Hence, there is an exception to the rule just mentioned, in those cases in which words have acquired, by usage, a peculiar sense different from the ordinary and popular one. And it is, in such cases, immaterial whether the sense, acquired by usage, be the strict grammatical or etymological one, or one which departs from all philological as well as popular and ordinary meaning, and is wholly anomalous.

1 Plowd. 160; Shep. Touch. 86; 1 Doug. 277; 7 D. & E. 423. 678. 2 Plowd. 169; 4 East, 135; 3 Dallas, 240; 3 Missouri Rep. 447, Pavey v. Burch.

Buller J. says a policy of assurance has at all times been considered, in courts of law, as an absurd and incoherent instrument; but it is founded on usage, and must be governed and construed by usage.' In the same case, lord Kenyon said, "I remember it was said, many years ago, that if Lombard street had not given a construction to policies of insurance, a declaration on a policy would have been bad on general demurrer; but the uniform practice of merchants and underwriters had rendered them intelligible."

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Where, in any case, language has acquired a peculiar meaning with reference to the subject matter of a contract, that meaning shall prevail in that particular case.' Hence, mercantile contracts are construed according to the sense attached by mercantile usage to the terms employed by the parties. And so of other contracts, not strictly mercantile, if there be a usage which the parties must be supposed to have had in view, when their contracts were made. But this construction cannot be allowed to prevail, unless the terms of the contract are general, or doubtful, on the face of them. If the terms employed are inconsistent with the construction which usage, &c., would give them, they must have the meaning which the parties obviously intended." A commercial usage will be considered as established, when it has existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made with reference to it. No specific time can be prescribed."

1 Brough v. Whitmore, 4 D. & E. 210.

2 See also 2 Bos. & Pul. 167. 168.

3 Bridge v. Wain, 1 Stark. Rep. 410; Scott v. Bourdillion, 2 New Rep. 213; 3 Stark. Ev. 1033.

4 2 Stark. Ev. 453, et seq.; 3 Stark. Ev. 1036; Dickinson v. Lilwall, 4 Campb. 279; Gibbon v. Young, 8 Taunt. 260; Lewis v. Thatcher, 15 Mass. 433; Webb v. Plummer, 2 Barn. & Ald. 746; 2 Phil. Ev. 45. 46.

Noble v. Kennoway, 2 Doug. 513; Barber v. Brace, 3 Connect. 9; Smith

112

So the ordinary and popular sense of terms may be controlled by local usage and understanding, and by the law of the place where the contract is made, or with reference to the laws of which it is made.' Ashhurst, J., says, "it may be necessary to put a different construction on leases made in populous cities from that on those made in the country." A "pack of wool," in Yorkshire and in Wiltshire, may perhaps differ in weight; and the words would be construed to mean the one weight or the other, according to the place where a contract is made. So of "cotton in bales;" in some places, compressed bales are meant by these words; in other places, bags merely. So if one sell tods, pounds, bushels, yards, ells, or perches, of any thing, they will be accounted, measured and reckoned according to local custom.5

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But if a particular measure is established by law, with a prohibition against using any other, that measure will be understood, notwithstanding any local usage to the contrary.

The usages of banks, where parties to notes and bills are accustomed to transact business, are recognized by courts as evidence of the assent of such parties to those usages, and therefore as giving a construction to their contracts different from the ordinary meaning of the terms employed, or implied by law, in cases where no such usages prevail. But a knowledge, express or implied, of the usage, must be brought home to the party who is to be affected by it."

v. Wright, 1 Caines, 43; Rapp v. Palmer, 3 Watts, 178; Collings v. Hope, 3 Wash. C. C. 150; Davis v. New Brig, Gilpin, 486; Trott v. Wood, 1 Gallis. 444; Chastain v. Bowman, 1 Hill, 270.

1 1 Domat, 36, § 9.

2 2 D. & E. 760. See also 1 Doug. 207; 6 Greenl. 225; 21 Pick. 372. 3 1 Poth. 50, n. (b). 4 Taylor v. Briggs, 2 Car. & P. 525.

51 Pow. Con. 376. See also 1 Bulst. 175, Hewet v. Painter.

• Master, &c. of St. Cross v. Lord Howard de Walden, 6 D. & E. 338; Hockin v. Cooke, 4 D. & E. 314. See also 3 D. & E. 271; 4 D. & E. 750.

7 See Jones v. Fales, 4 Mass. 245; Lincoln, &c. Bank v. Page, 9 Mass. 155;

If words have a known legal meaning, usage cannot control that meaning. To give effect to a usage, in such case, it must be specially included or referred to in the contract, or the words must be explained in the contract itself, so as to conform to the usage.' This rule, however, does not, it seems, always hold in parol contracts.'

Technical words in a deed are to be construed according to their legal meaning.3

2. Construction is to be what the common lawyers term favorable; that is, if the terms of an agreement are susceptible of two senses, they are to be understood so as to have an actual and legal operation.

If therefore the ordinary and grammatical sense of words used in a contract render it ineffective or frivolous, they are to be construed according to their less obvious and more remote meaning: Verba aliquid operari debent, et cum effectu sunt accipienda; debent intelligi ut aliquid operentur. Thus, "to," "from" and "until," if used in their strict and most proper sense, are exclusive of the subject to which they refer. But if this sense would render an agreement nugatory, they shall be construed to include the subject. same construction is to be adopted in order to prevent contradiction and absurdity; also to save a contract from being void for illegality-the law making no presumption

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The

Whitwell v. Johnson, 17 Mass. 449; Renner v. Bank of Columbia, 9 Wheat. 582; City Bank v. Cutter, 3 Pick. 414; Mills v. Bank U. States, 11 Wheat. 430; Bank of Washington v. Triplett, 1 Pet. 25; Brent's Ex'rs. v. Bank of Metropolis, 1 Pet. 89.

1 Doe v. Lea, 11 East, 312; 2 Stark. Ev. 455; 3 Stark. Ev. 1038; Sleght v. Rhinelander, 1 Johns. 192.

2 Doe v. Benson, 4 Barn. & Ald. 588; Den v. Hopkinson, 3 Dowl. & Ryl. 507; Furley v. Wood, 1 Esp. Rep. 199. 3 4 Watts, 89.

4 See 3 Leon. 211; 5 East, 254-260; 1 Doug. 382; 1 Bur. 285: Cowp. 714; 1 D. & E. 490.

5 Carter, 108, 109; 1 Poth. (Philad. ed.) 48, 49, notes; 1 Freem. 247; T. Ray. 68; 1 Sid. 105; Finch's Law, 52; Fonbl Book I. c. 6, § 18; Willes, 332.