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adding to the memorandum the name of the other party to the contract (l); and the signing by a mark would suffice (m).
A memorandum in writing, within the statute, cannot be signed by one of the contracting parties, as the authorised agent of the other; the agent must be a third person (n). And a memorandum, written by a clerk of the plaintiff, in the absence of the defendant, that the defendant had called to say, that he would be responsible to the plaintiff for goods supplied to a third person, is not a sufficient signature by the defendant or his agent, within the statute (o).
The first and third sections of the statute require that the agent signing agreements of the nature therein mentioned, shall be authorised by writing so to do. But the fourth and seventeenth sections do not render it necessary that the agent should obtain his authority by any written instrument; and, under those sections, the agent may derive his authority from his principal by parol (p), and a subsequent recognition of the agent's acts will suffice (9).
In the case of annuities (r), and the sale or transfer of ships (s), certain forms have been rendered essential by legislative enactment. By statute, the sale or assignment of a copyright must be in writing (t). And of late years, the legislature has acted upon this principle, by providing that the promise of a bankrupt to pay a debt barred by his certificate; of a debtor, to pay a debt barred by the statute of limitations; and of an adult to pay a debt contracted during his nonage, and which he was not bound to discharge, shall be void; unless they be in writing, and signed by the party (u).
By the custom or practice of merchants, bills of exchange and (1) Saunderson v. Jackson, 2 B. & P. 207; Hemming v. Perry, 2 M. & P. 238; Schneider v. Norris, 2 M. & Sel. 375, 381. See post, Index, Principal 286.
and Agent. (m) Per Best, C. J.,
(9) Ante, 17,8 post, tit. Sale of Goods. reau, 12 Moore, 218; Taylor v. Den- (*) 53 Geo. 3, c. 141; see Chitty's ing, 3 Nev. & P. 228.
Stats. tit. Annuities. (n) See Farebrother v. Simmons, 5 (s) 6 Geo. 4, c. 110; 7 Geo. 4, c. B. & Ald. 333; Bird v. Boulter, 4 B. 48; consolidated by 3 & 4 Will. 4, & Ad. 443. As to a signature by an c. 55. See Abbott on Shipp. 5th ed. 26. auctioneer or his clerk, for defendant, (1) 8 Ann. c. 9; 41 Gco. 3, c. 107; see id., and post, Index, tit. Auctioneer. 54 Geo. 3, c. 156, s. 4; 3 & 4 Will.
(0) Diron v. Broomfield, 2 Chit. R. 4, c. 15 ; see Chitty's Stats., and Chit. 205.
& Hulme's Stats. tit. Copyright ; (p) Rucker v. Commeyer, 1 Esp. Pincer v. Ilalker, 3 M. & Sel. 7; 4 106; Wright v. Dannah, 2 Camp. Camp.3, S.C.; Cumberland 1. Planche, 203; Clinall v. Cooke, i Sch. & Lef. 1 Ad. & E. 550. 22 ; see Harrison v. Jackson, 7 T. R. (u) Ante, 8, note (8).
promissory notes, and other similar negotiable instruments, must be reduced into writing, and, in some instances, signed by the parties thereto (sr).
It seems that even where writing is necessary, it may be made in pencil, and that ink is not essential (y).
Certainty. — But in order to constitute a valid parol or written agreement, the parties must express themselves in such terms that it can be ascertained, to a moral or reasonable degree of certainty, what they mean (z). And if an agreement be so vague and indefinite, that it is not possible to collect the full intention of the parties, it is void; for neither the court nor jury can make an agreement for the parties. An agreement to become a partner with another person, would seem to be void for uncertainty, if the terms of the partnership be not fixed between the parties (a). But if a firm be already formed on settled terms, an agreement between one of the partners and a third person, that the latter should become and be received as a member, is not open to the objection of uncertainty (6).
Whether the agreement be in writing, or by parol, or be under seal, it is a clear rule that no particular or technical form of words need be adopted, or are required by law, to give it force (c). If the intention of the parties can be sufficiently collected, it is unimportant what their language may be, or that they may have expressed themselves in ungrammatical terms. And we shall presently have occasion to observe, that even a recital, or words introduced by way of exception or proviso, &c., in an instrument,
(r) Lutw. 878; Thomas v. Bishop, 1, 2; Bac. Ab., Obligation (B); Chitty's Rep. T. Hardw. 2; Geary v. Physie, Bills, 8th ed. 149; Platt on Cov. 27 5 B. & C. 237, 7 D. & R., 653, S. C., to 38; per Willes, C. J., Parkhurst v. per Abbott, C. J.; Chitty's Bills, 8th Smith, Willes, R. 332; per Dallas, C. ed. 11, 146. As to promissory notes, J., Andrew's v. Ellison, 6 Moore, 206. see 3 & 4 Ann.ch.9; Chitty, jun. Bills, An action will lie on words of agree103; 7 Apn. c. 25, s.3; Bayl. Bills, 37. ment, although the parties may dis
(y) Geary v. Physic, 5 B. & C. 234; claim an intention to covenant; as 7 D. & R. 653, S. C.; Jeffery v. Wal- where “they resolved and agreed, and ton, 1 Stark. R. 267.
did, by way of declaration, and not of (c) See ante, 16, and note (g), and covenant, spontaneously and freely instances there; and post, 76; Cross agree, &c.” Ellison v. Bignold, 2 J. v. Elgin, 2 B. & Ad. 106; Guthing v. & W.510. See post, as to agreements Lynn, id. 232; per Lord Tenterden, amounting to a present demise, or Coles v. Hulme, 8 B. & C. 573; 3 M. only to a stipulation to demise in fu& R, 86, S. C.
turo, Index, Landlord and Tenant; (1) Figes v. Cutler, 3 Stark. R. 139. and see Hartshorne v. Il’atson, 5 Bing.
(6) M'Neill v. Reid, 2 Moore & S. N. C. 477 ; and see per Lord Abinger, 89; 9 Bing. 68, S.C.
in Alderman v. Neate, 4 M. & W.719. (-) See Com. Dig., Obligation (B),
may sometimes constitute a binding contract (d). But the instrument must import words of final agreement; and therefore, where the defendant signed a paper, stating, “I agree that my daughter shall perform, &c., this season, and I consent that she shall enter into articles for three following seasons,” Lord Tenterden is reported to have been clearly of opinion that the latter part of the instrument was a mere consent or licence, and not a contract upon which an action would lie (e).
2. OF THE CONSTRUCTION OF CONTRACTS.-Having thus considered the nature, requisites, and form of a contract not under seal, it will be proper to notice the rules and principles which govern the construction of an agreement.
We may premise that the rules of construction are, in general, the same at law and in equity (f). Nor are they varied by the circumstance of the contract being under seal (g). Whether the instrument be submitted to the judgment of a common law court, or a court of equity; and whether it be under seal or not, there can be no substantial reason for any difference in the rules, by which the intention of the parties is to be ascertained from the terms they have used.
The maxims for the exposition of contracts are simple and consistent, and well calculated to effect their sole object, namely, to do justice between the parties by enforcing a performance of their agreement, according to the sense in which they mutually understood it at the time it was made.
The observations of Dr. Paley, in his work on Moral Philosophy, are well worthy of our attention. He says, “ Where the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promiser apprehended at the time that the promisee received it.” “ It is not the sense in which the promiser actually intended it, that always governs the interpretation of an equivocal promise, because, at that rate, you might excite expectations which you never meant nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule,
, C) Morris v. Paton, 1 C. & P. 189; Laming
, 2 Burr. 1108, per Lord Manspost.
field; Vattel's Law of Nations by (1) 1 Fonbl. Tr. Eq. 5th ed. 147, Chitty, 244, 249. note (6); 14 Vin. Abr. tit. Intent; 3 (g) Seddon v. Senate, 13 East, 74, Bla. Com. 434; Fearn. Cont. Rem. per Lord Ellenborough; Hewet v. 4th ed. 220; Exton v. Lyon, 3 Ves. Painter, Bulstr. 174, 175.
you might be drawn into engagements which you never designed to undertake. It must, therefore, be the sense (for there is no other remaining), in which the promiser believed that the promisee accepted the promise. This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve; but we put the rule in the above form to exclude evasion in cases in which the popular meaning of a phrase, and the strict grammatical signification of the words differ; or, in general, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used. Temures promised the garrison of Sebastia, that if they would surrender, no blood should be shed. The garrison surrendered, -and Temures buried them all alive. Now Temures fulfilled the promise in one sense, and in the sense, too, in which he intended it at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it; which last sense, according to our rule, was the sense in which he was, in conscience, bound to have performed it.” This rule appears to be as true in law as in ethics; subject, perhaps, to this general principle of the law of evidence, that parol testimony cannot be received to contradict the evident sense of a written agreement, however manifest it may be, independently of the written instrument, that the promiser meant to make a different bargain.
The Construction shall be Reasonable.-It shall also be as near the minds and apparent intents of the parties as the rules of law will admit (h). And it is essential to consider the subjectmatter of the agreement, in affixing a meaning to the terms used therein (i).
We find similar principles in the French Civil Code (k): “Ex
(h) 2 Bla. Com. 379. Verba in- Bowerbank v. Monteiro, 4 Taunt. 844; tentioni debent inservire; Parkhurst v. Stone v. Metcalf, 1 Stark. R. 53. Smith, Willes, 332.
(k) Book 3, tit. 3, s. 5, art. 1158, (i) Doe v. Burt, 1 T. R. 703, per 1163, 1164. These rules are chiefly Ashurst, J.,; Saward v. Anstey, 2 Bing. adopted from Pothier. In many in522, per Best, C. J.; 10 Moor, 55, stances they are copied verbatim from S.C.; Robertson y. French, 4 East, that valuable Treatise into the French 135, per Lord Ellenborough. There- code. And a similar rule as to the fore if an executor promise to pay a construction of deeds, is laid down in simple contract debt " when assets are Roe dem. Wilkinson v. Tranmer, 2 received," it seems that it is to be un- Wils. 75; per Willes, C. J., Parkderstood to mean when assets legally hurst v. Smith, Willes, 332; Alexander applicable to the debt are received, v. Bonnin, 6 Scott, 621; Hinchcliffe v. and he may first pay a bond debt. See Earl Kinnoul, 6 Scott, 661.
pressions susceptible of two meanings, must be taken in that which best agrees with the matter of the contract.” “ However general the terms may be in which an agreement is couched, it only comprehends things respecting which it appears the parties intended to contract.” “When a case has been put in a contract for the purpose of explaining the obligation (I); it is not to be inferred to have been designed to restrict the extent to which the engagement goes of right, as regards cases not expressed."
In Comyns's Digest we find it laid down, that “ An agreement or contract shall have a reasonable construction according to the intent of the parties : as if a man agree with B. for twenty barrels of ale, he shall not have the barrels when the ale is spent (m).' If a person borrow a horse for a time, the law implies that it was part of the agreement that he should feed it whilst in his possession (n). “ If a party to a contract promise payment without saying to whom, it shall be understood that he promised payment to him from whom the consideration moved (o). If he promise quod parceret illum, it shall be intended that he would forbear the debt, or to sue him. If he promise payment upon Easterday, if A. do not pay the same day, A. has all the day for payment, and therefore it shall be intended of a payment afterwards upon request. To pay 1001. if he marries and has a son within a year then next following, shall be intended within a year after the marriage, and not after the promise (p).” A bond was given with a condition to pay 1001. by six equal instalments of 161. 13s. 4d. on certain days, “ until the full sum of one pounds should be paid." The Court held that the word "hundred” might be supplied (9). And where the condition of a bond recited that A. was indebted to B. in various sums, which were not stated in pounds sterling, and money of a smaller denomination, and that the bond was given to secure payment of these sums,
(1) That is, by way of example, for the judges, “ that the defendant prootherwise the rule crpressio unius er- mised to pay the plaintiff," is good, clusio ulterius may apply. See in- and it is not necessary to state that stance, Rex v. The Inhabitants of the defendant promised the plaintiff' Sedgley, 2 B. & Ad. 65; Hare v. to pay him. See Bancks v. Camp, 9 Horton, 5 B. & Ad. 720.
Bing. 604. See an exception, Price (m) Com. Dig. Agreement (C); v. Euston, 1 N. & M. 303; 4 B. & cites 27 llen. 3, 27,b; Bro., Contract Ad. 433, S. C.; and ante, 54. (4); post.
(v) Com. Dig., Action upon the (n) Handjord v. Palmer, 2 B. & B. Cuse upon assumpsit (A 5). 359.
(9) Ilaugh v. Russell, 7 Taunt. 707 ; (0) It is on this ground that the 1 Marshall R. 214, 311, S. C. form of the common count given by