the writing irrespective of the justifiable belief which the promisor has of the promisee's understanding. In the first case the promisor justifiably supposes that the promisee attaches the same meaning to the writing that he himself does. The promisee, however, with equal reason attaches another meaning to the words. The court will construe the writing and give the meaning to it which under the circumstances the court conceives the language ought locally to bear. This meaning conceivably may be different from that which either party justifiably attached to the words. 19 The second case involves the question whether in a written contract the parties have absolute freedom to attach a special meaning to their words wholly different from that which the words ordinarily bear in the place and under the circumstances tation of plain and unambiguous language of a written instrument in accordance with any other meaning than that indicated by the words used in the instrument. The rule is thus limited in 2 Parsons, Contracts (9th Ed.), 498." See also Comptograph Co. v. Burroughs Adding Machine Co., 179 Ia. 83, 159 N. W. 465, 473, and cases infra, § 610. 19 In Preston v. Luck, 27 Ch. D. 497, the parties entered into an agreement with reference to certain patents. The plaintiff contended that the agreement included both English and foreign patents. The defendant understood that he was contracting to sell the English patents only. Kay, J., held that a contract means consensus ad idem and that the plaintiff must fail even in regard to the English patents. This decision was reversed. Cotton, L. J., in the Court of Appeal said: "Now, where parties enter into a written contract, what they have agreed to must depend on the construction of that contract. It is very true that in some cases, if the party against whom specific performance is sought to be obtained, satisfies the Court by clear evidence that what he on the terms of the contract appears "The mere fact that they put an erroneous construction on a contract in writing existing between them and the Defendant Luck, and insisted that it included what it does not in fact include, is, in my opinion, no ground for saying that there is no contract." It is submitted that if there were three sets of patents, English, French and American, and one party supposed the English and French were included, and the other supposed the English and American were included, but the Court believed that the proper construction of the language at the time and place that the contract was made, was that the French and American were included, there would be a contract to that effect. See also infra, § 610. where the contract was made; and it seems pretty clear that they have not.20 The ultimate standard then in contracts of which a memorial has been made is the proper local meaning under the surrounding circumstances, of the words or symbols agreed upon by the parties. This test may be applied without exception. § 608. The local standard is preferable to the normal standard. Though the obligation of a contractor depends upon his expressed, not his actual intention, it is desirable that as little violence shall be done to his actual intention as is consistent with two things: 1. Fairness to the co-contractor who may have been justified in assuming an intention different from that which actually existed. 2. A reasonable certainty of proof of the terms of the contract. It is the second requisite which is here in question. Is certainty of proof too much impaired by enforcing the contract according to a local standard, when, if the normal standard were applied, a different meaning would be obtained? The early law seems generally to have forbidden the application of a local or particular standard under these circumstances.21 But a reasonable degree of certainty is attained if words are construed according to a standard not peculiar to the parties, but customary among persons of their kind under the existing circumstances. The certainty obtained by enforcing always the normal standard would be but little greater, and would be obtained at the expense of a rigidity which would frequently do violence to the actual intention of 29 See infra, § 611. "In Wing v. Earle, 1 Cro. Eliz. 267, Gawdy, J., said: Twenty acres should be calculated when referred to in an obligation "according to the law, and not according to the custom of the country." In Master, etc., of St. Cross Hospital v. Walden, 6 T. R. 338, it appeared that a bushel by statute contained 8 gallons, but a local measure contained 9 gallons. The court held that a local lease reserving rent in "quarters," must be construed as referring to the statutory bushel, for when a word had a legal meaning its legal meaning must be understood. See also Bradley v. Steampacket Co., 13 Pet. 89, 105, and modern cases to the same effect may be found. the parties. That the local standard would be applied unless at any rate under the normal standard the words were extremely clear seems to have been early settled. Even though the local standard led to a construction opposed to the literal meaning of the language this was true. 22 Perhaps in case of deeds of conveyance, or of negotiable instruments, which are relied upon not simply by the parties to them, but by others, the normal rather than the local standard may be defensible, but not in ordinary contracts; and the prevailing tendency at the present day is to enforce the local meaning though contrary to an apparently clear normal meaning. "Neither, in the construction of a contract among merchants, tradesmen, or others, will the evidence [of a local usage] be excluded because the words are in their ordinary meaning unambiguous; for the principle of admission is that words perfectly unambiguous in their ordinary meaning are used by the contractors in a different sense from that." 23 22 Hewet v. Painter, 1 Bulstr. 174, 175 (9 Jac. 1), "As touching construction of words, they shall be taken according to the Common parlance, phrase and custom of speech where the words are spoken. 27 H. 8. fo. 27. b. the meaning and intent of parties is to be observed, and to this purpose Fitzherbert there puts the case, that if two do make a contract for 18 Barrels of Ale for a certain some of money, and he which bought the Barrels of Ale would have had into his bargain the Barrels also, when the Ale was spent; but it was adjudged that he should not have the Barrels, for that the common usage was, that the vendor should have the Barrels again, and the intent of the parties never was that the vendee should have the Barrels, but only the Ale." "And this intention and construction of words shall be taken, according to the vulgar and usual sense, phrase and manner of speech of these words, and of that place where the words are spoken, as the case before remembered, of straining of a Mare taken for distrayning." 23 Brown v. Byrne, 3 E. & B. 703. So in Myers v. Sarl, 3 E. & E. 306, Blackburn, J., said: "I do not think that it is necessary, in order to render such evidence admissible, that there should be any ambiguity on the face of the phrase which has to be construed. ... I take to be the true rule of law upon the subject that when it is shown that a term or phrase in a written contract bears a peculiar meaning in the trade or business to which the instrument relates, that meaning is prima facie to be attributed to it; unless upon the construction of the whole contract enough appears, either from express words or by necessary implication, to show that the parties did not intend that meaning to prevail. The consequence is that every individual case must be decided on its own grounds." In the well known case of Smith v. Wilson, 3 B. & Ad. 728, in an action on a covenant in a lease to "leave in the warren ten thousand rabbits," proof was allowed that the customary mean § 609. Clear and unambiguous words. Though the expressions in the cases are numerous that where language used in a contract is clear and unambiguous, there is no opportunity for interpretation or construction,24 yet these expressions themselves need interpretation. As has been seen, in a strict sense, every contract needs interpretation; and,24 therefore, the expressions in question are literally inexact; moreover, if the local standard is adopted, contracts apparently clear in their meaning may be shown by usage or the surrounding circumstances to be ambiguous or perhaps clearly to mean something different from the normal or ordinary meaning of their language.25 There are, however, certain secondary rules for the interpretation or construction of a contract, the meaning of which is doubtful after the primary means which are always available to aid the court in applying the standard accepted by ing of thousand as applied to rabbits in that vicinity was one hundred dozen, and Coleridge, J., said: Evidence will not be excluded because the words are in their ordinary meaning unambiguous." In Grant v. Maddox, 15 M. & W. 737, years was interpreted as meaning the period of the year less a long vacation. In Mitchell v. Henry, 15 Ch. D. 181, the words "white selvage" were interpreted as covering a dark gray border on a piece of goods, on proof that such was the trade name. In Walls v. Bailey, 49 N. Y. 464, Folger, J., said: "The meaning of words may be controlled and varied by usage, even when they are words of numbers, length or space, usually the most definite in language." See also Nelson v. Ohio Cultivator Co., 188 Fed. 620, 623, 112 C. C. A. 394; Leavitt v. Kennicott, 157 Ill. 235, 41 N. E. 737; Lexington & Big Sandy R. Co. v. Moore, 140 Ky. 514, 517, 131 S. W.257; Commonwealth v. Hobbs, 140 Mass. 443, 5 N. E. 158 (arsenic colored with lamp black was held under the evidence to be "white arsenic"); Brown v. Doyle, 69 Minn. 543, 72 N. W. 814; Farnum v. Concord Horse R. Co., 66 N. H. 569, 29 Atl. 541; Hinton v. Locke, Hill, 437 (proof was allowed that a "day" meant ten hours); Reed v. Tacoma B. & S. Association, 2 Wash. 198, 26 Pac. 252, 26 Am. St. Rep. 851 ("west" in a deed, was interpreted as meaning a little north of west on proof that government surveys were thus designated). See also § 650. Cf. cases cited in the following section. 24 See, e. g., E. H. Stanton Co. v. Rochester &c. Agency, 206 Fed. 978; Birmingham Waterworks Co. v. Windham, 190 Ala. 634, 67 So. 424; Commons v. Snow, 194 Ill. App. 569; Cottrell v. Michigan United Traction Co., 184 Mich. 221, 150 N. W. 857; Quirk v. Rich, 40 Mont. 552, 107 Pac. 821; Gans v. Aetna L. Ins. Co., 214 N. Y. 326, 108 N. E. 443, L. R. A. 1915 F. 703; Mecca Realty Co. v. Kellogg's Corn Flakes Co., 151 N. Y. S. 750; Finger v. Goode, 169 N. C. 72, 85 S. E. 137; Harney v. Wirtz, 30 N. Dak. 292, 152 N. W. 803; Tacoma Mill Co. v. Northern Pac. R. Co., 89 Wash. 187, 154 Pac. 173; Griffin v. Fairmount Coal Co., 59 W. Va. 480, 53 S. E. 24. 240 Supra, § 601. 25 See supra, § 608, infra, §§ 618, 650. the law (whether that is the local or the normal standard) have been used.26 Such is the rule that language is construed most strongly against him who uses it, or that where written words are in conflict with printed words, the former prevail. That these rules cannot come into play where it is clear from the primary sources of information what the contract means under the standard which the law adopts, is perfectly true. It is probable that nothing more than this is meant in most cases where the possibility of interpretation is denied if the contract is clear and unambiguous. In some cases, however, it is plain that an assertion is intended that where language is clear according to the normal standard, not only a mutual standard cannot be applied, 27 but that a local standard also is inadmissible.28 The accuracy of such statements cannot be ad20 See infra, §§ 619 et seq. 27 See the next two sections. 28 In Braney v. Millbury, 167 Mass. 16, 17, 44 N. E. 1060, the court said: "The price to be paid was a round sum for building the road, culvert, and drain, and in the specifications under the division 'Road' there is a reference to the excavation of the 'material,' without anything to indicate that the rights or obligations of the parties under the contract were to be affected by the kinds of material which might be found in the excavation. We are of opinion that the contract calls for the construction of the road without reference to the question whether there is stone or rock in small or large quantities in the portion to be excavated. The only part of the contract that furnishes any ground for an argument to the contrary is the word 'earth' used in stating generally the subjectmatter of the contract. The evidence of the experts, offered to show that the words 'earth excavation' as used in the contract did not mean 'rock excavation,' and that it is the custom of the trade in such cases for the contractor to receive extra compensation for such rock excavation as it is necessary to make in the execution of the contract when there is no specific agreement therein concerning the matter, was rightly excluded." In Kentucky Wagon Mfg. Co. v. People's Supply Co., 77 S. Car. 92, 57 S. E. 676, 122 Am. St. Rep. 540, in an action for damages alleged to have been sustained by the plaintiff because of the defendant's failure to keep certain property "fully insured" the defendant denied a breach of the promise and alleged that "fully insured" in insurance contracts meant a policy which provided that in case of loss the Insurance Company would be liable for only three-fourths of the actual value of the property in view of the custom of insurance companies to treat that proportion as the full insurable value. The court said: "Conceding it was the usual practice of insurance companies in general to write policies containing the 3-4 clause, such practice could not be shown for the purpose of contradicting words in agreements entered into between third parties, which are free from ambiguity or equivocation; and in their ordinary and usual acceptation have but one meaning, as in the case under consideration. This would infringe upon the well settled doctrine that parol testi |