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As agreements derive their force from the mutual assent of the parties to certain terms, it follows that the operation and extent of every agreement is to be ascertained from the intention of the parties. This intention is to be collected from the expressions used by the contracting parties.

Mr. Fonblanque defines interpretation, or construction, to be the collection of the meaning of the contract from the most probable signs. Mr. Powell says construction is the drawing of an inference, by the aid of reason, as to the intent of a contract, from given circumstances, upon principles deduced from men's general motives, conduct and actions."

* Wattel's chapter on the interpretation of treaties contains an exposition, most of which is applicable to contracts between individuals, and deserves an attentive perusal. Sheppard's Touchstone, ch. v., on the exposition of deeds, should also be studied. And students should not fail to examine, with care, the twelve rules for the interpretation of agreements, which are laid down by Pothier in his treatise on the law of obligations. See also 1 Domat, 36, 37; Rutherforth, book ii. ch. 7.


The necessity of rules of construction arises from the imperfection of language, and from the imperfect use of it in those instances in which language wholly unequivocal and explicit might be selected. “If,” says Wattel, “the ideas of men were always distinct and perfectly determined—if, in order to make them known, they had only proper terms, and none but such expressions as were clear, precise, and susceptible of only one sense—there would never be any difficulty in discovering their meaning in the words by which they would express it. Nothing more would be necessary than to understand the language.”

Even in this state of things, however, it is obvious to every one who has experience in the affairs of life, that rules of construction would be necessary. In contracts where more than one definite object is stipulated for—at least wherever a general object is intended to be secured by a stipulation concerning a variety of particulars—it is hardly possible to foresee every case that will arise even under the course of events that is anticipated. Much less can the state of affairs be foreseen which new conjunctures and unexpected events will inevitably produce. Yet it would be highly injurious to both parties, if the exact literal stipulations of a complicated contract were to be performed, and nothing more; and therefore it is necessary to resort to construction—that is, to inductions drawn from the general views of the parties (as expressed in their contract) with reference to the existing circumstances; in other words— to collect, from the object, drift and spirit of their agreement, what their leading and paramount intentions were, and to carry those intentions into effect. ~ *

Thus it often happens that a contract evinces a general and also a particular intent. The particular intent, perhaps, cannot be carried into effect at all; or if it should be, it would wholly, or in a great measure, defeat the general intent. In such cases—though there is no doubt of the 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 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, none 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:

* See 3 Bur. 1634; 2 D. & E. 254; 1 Doug. 277. * 2 Bur. 1108; 3 Bl. Com. 431. * 13 East, 74, per Lord Ellenborough.

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. * 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.”

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."

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

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

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

* 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

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