8. The con

be taken against the

8. The construction shall be taken most strongly against

struction is to the grantor or contractor; but this is a rule not to be resorted to until after the other rules of construction fail, and in some cases it will not apply at all—thus it does not apply against the Crown.

grantor.

9. Parol evi

missible to

contradict a

written

contract.

9. Parol evidence is never admissible to vary or condence not ad- tradict a written contract, but it is admissible to explain in the case of a latent, though not in the case of a patent ambiguity.-A patent ambiguity is one appearing on the face of the instrument; a latent ambiguity is one not so appearing, but raised by extraneous evidence ; and the distinction between these two cases as to the admissibility of parol evidence has been so well stated. by Lord Chief Justice Tindal, that the author cannot refrain from here giving his remarks, although somewhat lengthy. His lordship stated as follows::

The distinc

of parol evi

dence in the

and a latent

Chief Justice

Tindal.

The general rule I take to be that, where the words tion as to the of any written instrument are free from ambiguity in admissibility themselves, and where external circumstances do not case of a patent create any doubt or difficulty as to the proper application of those words to claimants under the instrument ambiguity, as stated by Lord or the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain, common meaning of the words themselves; and that, in such case, evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties, is utterly inadmissible. The true interpretation, however, of every instrument being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered an exception, or, perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning

of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree, that by no other means can the language of the instrument be made to speak the real mind of the party. Such investigation does of necessity take place in the interpretation of instruments written in a foreign language; in the case of ancient instruments; in cases where terms of art or science occur; in mercantile contracts, which in many instances are in a peculiar language employed by those who are conversant in trade and commerce; and in other instances in which the words, besides their general common meaning, have acquired, by custom or otherwise, a well-known, peculiar, idiomatic meaning, in the particular county in which the party using them was dwelling, or in the particular society of which he formed a member, and in which he passed his life" (y).

Nugent.

When a contract has once been reduced into writing, Goss v. Lord evidence cannot be given to shew that the parties at the time agreed by parol that some other term or stipulation should be part and parcel of the contract, for to admit any such evidence would be in effect to vary the written instrument (2). If parties have made. an executory contract which is to be carried out by a deed afterwards executed, the real complete contract is to be found in the deed, and the parties have no right to look at the contract, although it is recited in the deed, except for the purpose of construing the deed itself; it must not be looked to for the purpose of enlarging, or diminishing, or modifying the contract which is to be found in the deed itself (a). Of course if the contract is not one which is required to be in writing, there is nothing to prevent the parties sub

(y) Shore v. Wilson, 9 C. & F. 565-567.

(2) Goss v. Lord Nugent, 5 B. & A. 58.

(a) Leggott v. Barrett, L. R. 15 Ch. D. 306; 28 W. R. 962; 43 L. T.

Expressum facit cessare tacitum.

As to when time is of the essence of a contract..

Meaning of
the term
"month."

sequently making some fresh stipulation by parol, for that will simply be making to that extent a fresh agreement.

In addition to the foregoing rules, it may be well to mention a few other points on the construction of contracts. In mentioning the subject of implied contracts, we have already stated that where there is some well-known and established usage or custom in a trade, persons may be taken in their contracts to have had that in view at the time; and a contract may be construed on that footing, provided, of course, that the custom or usage does not clash with the contract; for it is an imperative principle of construction that whenever there is an implied contract, and the parties have also expressly agreed on the point, the maxim Expressum facit cessare tacitum will have effect (b).

When a contract is to be completed by a certain day, the rule at law formerly was that time was of the essence of the contract; but in equity it was never so, unless expressly so stipulated, either at the time of the contract, or by notice given afterwards (c), or it appeared to be so intended from the nature of the property, e.g. where a reversion was being sold, as it might at any moment, through the falling in of the life estate, become an estate in possession. The rule of equity on this point now prevails in all branches of the High Court of Justice (d).

The term "month" in a contract signifies a lunar

(b) Ante, p. 19; and see hereon Wigglesworth v. Dallison, 1 S. L. C. 594; Dougl. 201; Johnson v. Raylton, L. R. 7 Q. B. D. 438 ; 50 L. J. Q. B. 735; 45 L. T. 374.

(c) However, a party to a contract is not entitled in every case by giving notice to make time of the essence of the contract; there must have been some unreasonable delay by the other party. Green v. Sevin, L. R. 13 Ch. D. 589; 49 L. J. Ch. 166.

(d) Jud. Act, 1873, s. 25 (7).

month (e), except in the case of mercantile contracts, e.g. bills of exchange, when it signifies a calendar month. In a statute passed before 1851, it means, prima facie, a lunar month, but after that time a calendar month (ƒ).

(e) Hulton v. Brown, 29 W. R. 928; 45 L. T. 343.

(f) 13 & 14 Vict. c. 21, s. 4.

simple con

tract.

CHAPTER II.

OF SIMPLE CONTRACTS, AND PARTICULARLY OF CASES IN
WHICH WRITING IS REQUIRED FOR THEIR VALIDITY.

Definition of a A SIMPLE contract may be defined as an agreement relating to some matter, and either made by word of mouth or writing not under seal; and they have been said to be called simple because they subsist by reason simply of the agreement of the parties, or because their subject-matter is usually of a more simple or of a less complex nature (g). Simple contracts have four great Four essentials essentials, which are-(1) Parties able to contract; (2) Such parties' mutual assent to the contract; (3) A valuable consideration; and (4) Something to be done or omitted which forms the object of the contract (h). There are in certain cases other requirements, and particularly, in some cases, writing is necessary, which will presently be inquired into.

to simple contracts.

Generally speaking, all persons are

contract.

Firstly, then, as to the parties to contracts. As a general rule, all persons are competent to contract, for competent to the law presumes this until the contrary is shewn; but this is liable to be shewn in numerous cases, and it will be found that in some cases the incompetency to contract is absolute, in others only limited; in some the contract is of no effect at all, in others only so with regard to the incompetent party (i).

Cases of incompetency to contract.

The chief cases of incompetency to contract, either entire or limited, may be stated to be in the case of

(g) Brown's Law Dict. 493.
(h) Chitty on Contracts, 8.
(i) Ibid. 16.