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If a carrier give two different notices, limiting his responsibility in case of a loss of goods, he is bound by that which is least beneficial to himself (n). So if parties give a notice stipulating for a general lien on all goods on hand, such notice will be construed strictly as to the goods on hand, and will not extend to materials used in the course of the manufacture of such goods which have been furnished by the employer (o). So, if an instrument be made in terms so ambiguous as to make it doubtful whether it be a bill or note, the holder may, at his election, as against the maker of the instrument, treat it as either (p). And where a man, for a good consideration, gave a note expressed to be " for money borrowed, which I promise never to pay,” it was held that the word never might be rejected (q). And on this principle, a bill or note made payable to the order of a fictitious person, shall, in some instances, be construed and considered as payable to bearer (r).
This rule of construction against the contractor, is clearly subject or subordinate to all those principles of exposition to which we have before adverted. It cannot apply, except in cases of ambiguity; and even then, regard must be first had to the apparent intention of the parties, as it is to be collected from the whole context of the instrument. It is a rule calculated and intended to defeat studied ambiguity and deceitful intricacy of expression, but it is considered a rule of some strictness and rigour, and the last to be resorted to; and is never to be relied upon, but where other rules of construction fail (s). If the con
See per Bayley, J., Rer v. Faraday, 1 Russell v. Langstaff, B. R. M. 21 G. B. & Ad. 281, as to an exception in 3; and in Peach v. Kuy, Sitt. T. T, a statute. And ante, 87.
Lord Hardwicke, (n) Munn v. Baker, 2 Stark. R. 255. Simpson v. Vaughan, 2 Atk. 32. (o) Cumpston v. Haigh, 2 Scoit, (r) See Chitty, jun. on Bills, 7, and 684; 2 Bing. N. C. 449, S. C. Index Fictitious Names; Chitty Bills,
(p) Edis v. Bury, 6 B. & C. 133; 8 ed. 64, 131, 357. 2 C. & P. 559, S. C., Chitty jun. on (8) Bacon's Elem. c. 3 ; 2 Bla. C. Bills; and see cases there cited. In 380 ; per Lord Eldon, Browning v. Edis v. Bury, the instrument was “I Wright, 2 B. & P. 22; per Bayley, J., promise, &c.;" but it stated the name Barton v. Fitzgerald, 15 East, 546; and address of another person in the per Park, J., Nind v. Marshall, 1 B. & place where the name, &c. of the B.335; per Cur. in Hargreave v. Smee, drawer of a bill are usually inserted; 6 Bing. 244, and 3 M. & P. 573. and such person's name was written The French law is to the contrary. across the instrument. The court held “ Duns le doute, la convention s'interit might be treated as a note, and then prète contre celui qui a stipulé et en no notice to the maker of dishonour faveur de celui qui a contracté l'oblineed be proved.
gation." Code Civil, b. 3, tit. 3, art. (9) Cíted by Lord Mansfield in 1162 ; and see Pothier, p. i. c. 1, s.
tract be so ambiguous that no meaning can be extracted from it with any degree of moral certainty, it shall be treated as void (t). And in cases of penalties, or forfeitures (u); or where a harsh construction would work a wrong to a third person (x); the rule that contracts shall be construed most strictly against the contractors seems not to apply.
Implied Attributes of Agreements. — It is a presumption of law in the case of specialties and simple contracts, that the parties bind, not only themselves, but their personal representatives also; and that such parties are to sue on the agreement, although they be not mentioned therein (y), for death is in general no revocation of an agreement, but it may, unless it be a personal engagement to be performed by the testator himself only, and requiring his personal skill or taste, be completed by his executors (z). And the maxim “ actio personalis moritur cum persona,” at common law applied to all cases where the action was necessarily in form ex delicto, until the statutes 4 Ed. 3, c. 7, altering this rule in its relation to personal property; and the 3 & 4 Will. 4, c. 42, giving executors an action on torts to their testator's real or personal estate (a). But though the remedy for a breach of promise of marriage is in form ex contractu, still the contract is of so personal a nature that no action lies by the executor of the promisee, at least without showing a special damage to his estate (6). The difference between specialties and contracts not under seal, in respect to the liability of heirs and devisees, has been before noticed (c). It is also a principle of law, that if several persons stipulate for the performance of an act, they are impliedly bound jointly, and not severally: and there must be express words creating a several liability, in order to render them separately responsible (d).
1, art. 7, Evans's ed., vol. i. 58. Rog- (u) See 1 Powell on Contracts, 397; non, in his edition (1831) of the Code, 3 Chit. Com. L. 115. observes on the words “ Qui a stipulé" (x) Co. Litt. 42. as follows," on appelle stipulant celui (y) See 1 Chitty Pl., 6th ed., 21,58; en faveur de qui l'obligation est con- Pothier, p. 3, c. 7, art. 3. tractée, et promettunt celui qui con- (z) Marshall v. Broadhurst, 1 C. & tracte l'obligation ou qui s'oblige: le Jer. 403; 1 Tyr. 348, S. C.; Siboni v. stipulant s'appelle plus ordinairement Kirkman, 1 Mee. & W. 418, 423; 1 créancier et le promettant débiteur.” Tyr. & G. 777, S. C.; Edwards v. And on the words “ De celui qui a con- Grace, 2 Mee. & W. 190. tracté,” he comments thus; “ Car celui (a) 1 Chit. Pl., 6th ed., 68. qui s'est obligé est loujours supposé avoir (6) Chamberlain v. Williamson, 4 voulu contracter le lien le moins rigou- Maule & S. 408. Nor, it should seem, reur: ambiguitas contra stipulatorcm will an action lie against an attorney est. Il y a exception a ce principe at the suit of an executor, on an imlorsque l'une des parties etait particu- plied promise, by the attorney, to inlièrement obligée d'expliquer clairement vestigate the title to a freehold estate, ce a quoi elle s'obligeait : comme par
without special damage; Knights v. exemple, un vendeur" (art. 1602.) Alarles, 4 Moore, 532; 2 B. & B. (1) Ante, 73.
102, S. C.
III. OF PAROL EVIDENCE IN CONTRADICTION, &c., TO A WRITTEN AGREEMENT.-It is not allowable to interpret what has no need of interpretation. Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est (e). The principle, that where there is no ambiguity in the terms used, the agreement or instrument itself shall be the only criterion of the intention of the parties, excludes parol evidence contradictory to the writing itself; although such oral testimony would clearly show that the real intention of the parties was at variance with the particular expressions of the written agreement (f). And this rule obtains, in general, even in a court of equity (g).
An attorney entered into a written contract, whereby he agreed to take into partnership in his business, a person who had not at that time been admitted. No time was expressly fixed for the commencement of the partnership. It was held, that no time being expressly appointed, the partnership presumptively commenced from the date of the agreement, and that parol evidence could not be received to show that the agreement was not to take effect, until the party should be duly admitted on the roll of attornies, as that would contradict the agreement (h). This is a strong case, for the parol evidence would have shown that the contract was not meant to be illegal ; and it did not expressly
(c) Ante, 7.
Cookes v. Mascal, 2 Vern. 34; Jackson (d) i Chit. Pl., 6th ed., 47; Platt, v. Cater, 5 Ves. jun. 688; Clinan v. Cov. 117. As to a covenant, &c. to Cooke, 1 S. & L. 22; Gordon v. Hertseveral persons; 1 Chit. Pl. 9, &c. ford, 2 Madd. 106; Clowes v. HigginAs to what words create a joint or son, 1 V. & B. 524; and cases, 2 several liability, see Lee v. Niron, 1 E. Chitty, Eq. Index, tit. Practice, Ad. & E. 208; 3 Nev. & M. 411. xxxviii. There are, however, some
(e) Co. Litt. 147 a; Vattel's Law cases besides those of fraud, in which of Nations, by Chitty, 224 ; see ante, equity will relieve against and correct 25, 87, as to this rule.
a written agreement, even though it () Countess of Rutland's Case, 5 can be done only by receiving parol Coke, 26; Bac. Elem. Rule 23; 2 evidence, as in cases of gross mistake; Pothier, by Evans, 37, 203 ; see Phil- see 2 Stark. Ev. 543. As to fraud, lipps and Starkie on Evidence; Meres &c., post. F. Ansell, 3 Wils. 275.
(h) Williams v. Jones, 5 B. & C. (g) Hare v. Shearwood, 1 Ves. jun. 108; 7 D. & R. 548, S. C. 241; Jordan v. Sawkins, id., 402;
contradict the direct words of the instrument, only its legal import or construction.
The rule that a written instrument shall not be contradicted or varied by parol testimony, is, perhaps, rather a branch of the law of evidence than of contracts; but it has sufficient relevance to the principles which govern the construction of written contracts, to justify our attention to it on the present occasion. The writing must necessarily be the best evidence. We have already partially considered the principle, that the court and jury cannot make a new agreement for the parties, by departing from the clear intention and object which they have mutually expressed in their written contract(i).
Therefore, even in the instance of a mercantile contract in writing, although the particular meaning of peculiar mercantile expressions may, as before observed, be shown by parol testimony(k), yet, if the terms of the contract be unambiguous, if the expressions be in words of general (not technical) import, and their meaning be clear; oral testimony of a usage of trade, or particular intention, at variance with such import of the written instruments, cannot be adınitted (?). Where a policy of insurance in the common form expressed " that the insurance on the said ship shall continue until she is moored twenty-four hours, and on the goods until safely landed,” the Court of King's Bench held that evidence of an usage that the risk on the goods as well as the ship expired in twenty-four hours, was inadmissible (m). And where the vendor of a quantity of bacon warranted it to be of a particular quality, it was held that the vendee could not give evidence of a custom in the trade that a buyer was bound to reject the contract, if he was dissatisfied with it at the time of examining the commodity: and Heuth, J., who tried the cause, said that it would breed endless confusion in the contracts of mankind, if custom could avail in such a case (n). And if a written
(i) Ante, 25. (k) Ante, 83.
(1) Parkinson v. Collier, Park, Ins. 416, cited in Phil. Ev., 8th edit., 769, and 2 Stark. Ev. 567, note; Anderson v. Pitcher, 2 B. & P. 168; Moller v. Living, 4 Taunt. 102 ; see 2 Stark. Ev. 565, 566. Semble, that the evidence of mercantile men as to any special commercial meaning of the words “ about" and “ more or less,"
as applied to the quantity of goods agreed in writing to be sold and shipped for a vessel, cannot be received ; see id., Cross v. Eglin, 2 B. & Ad. 106; ante, 84.
(m) Parkinson v. Collier, supra.
(n) Yates v. Pym, Holt, N. P. C. 95; S. C., in 6 Taunt. 446, and 2 Marsh. R. 141; Powell v. Horton, 2 Bing. N. C. 677.
agreement be for the hire of a vessel, to be made ready to take on board " forthwith;" evidence is inadmissible to show that the parties agreed that the vessel should be ready in two days (o). So if an agreement be entered into by a broker in his own name, his principle not being known, parol evidence cannot be admitted to show that a custom existed in the city where the contract was made, for brokers to send in their notes without disclosing the names of their principals (p).
Upon the same principle, although the custom of the country, in regard to the claims of the outgoing tenant of a farm shall prevail (9), even where there is a lease, if such lease contain no stipulations as to the terms of quitting, which can exclude the custom (r); yet where the lease or agreement contains any express terms on the subject, evidence of the custom shall be excluded. Expressum facit cessare tacitum (s). As if a lease contain an express provision as to the away-going crops, the custom of the country cannot be considered (t). In Webb v. Plummer (u), it appeared that by the custom of the country, the out-going tenant
(o) Simpson v. Henderson, 1 M. & has been established by such authoMal. 300.
rily, and the relations between land(p) Magee v. Atkinson, 2 Mee. & lord and tenant have been so long reW. 440; post,
gulated upon the supposition that all (9) See Smith v. IVilson, cited anle, customary obligations, not altered by 91, that the term, one thousand rab- the contract, are to remain in force, bits, in a lease, may be shown to that it is too late to pursue a contrary mean one thousand two hundred. In course; and it would be productive Hutlon v. W'arren, 1 Mee. & W. 475, of much inconvenience if this practice Parke, B. ohserves, “It has long been were now to be disturbed. settled, that, in commercial transac- “ The common law, indeed, does tions, extrinsic evidence of custom and so little to prescribe the relative duties usage is admissible to annex incidents of landlord and tenant, since it leaves to written contracts, in matters with the latter at liberty to pursue any respect to which they are silent. The course of management he pleases, prosame rule has also been applied to vided he is not guilty of waste, that it contracts in other transactions of life, is by no means surprising that the in which known usages have been es- courts should have been favourably tablished and prevailed; and this has inclined to the introduction of those been done upon the principle of pre- regulations in the mode of cultivation sumption that, in such transactions, which custom and usage have estathe parties did not mean to express in blished in each district to be the most writing the whole of the contract by beneficial to all parties.” which they intended to be bound, but (r) Post, 102; Holding v. Pigott, a contract with reference to those 7 Bing. 465; 5 Moo. & P. 427, S. C. known usages. Whether such a re- Ante, 87. laxation of the strictness of the com- (1) Boruston v. Green, 16 East, 71; mon law was wisely applied, where Roberts v. Barker, 1 C. & M. 808; 3 formal instruments have been entered Tyrw. 945, S. C. into, and particularly leases under seal, (u) 2 B. & Ald. 746. See post. may well be doubted; but the contrary