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It is often said that direct evidence of intention is admissible in case of equivocation, and most of the illustrations put in this section would be regarded as illustrations of this principle.

best definition to be applied in the interpretation of the contract itself. The effect must be limited to definition of the terms used, and identification of the subject-matter. If so limited, it makes no difference that the language of the nego iations relates to the future, and consists in positive engagements on the part of the other party to the contract. Their effect depends, not upon their promissory obligation, but upon the aid they afford in the interpretation of the contract in suit. They are not the less effective for the purposes of explanation and definition because they purport to carry the force of obligation. The contract in suit may illustrate this principle in a point that is not in dispute. The defendant agrees to pay fifty dollars 'for inserting business card,' etc. In applying this stipulation, if the defendant had a business card distinctly known and recognized as such, there would be no difficulty in giving effect to the contract. But the identification of that card would involve the whole principle of admitting parol evidence for the interpretation and application of written contracts to the subject-matter. It could be done only by the aid of parol testimony. Suppose he had several business cards, differing in form and contents, but one was selected and agreed upon for the purpose at the time the contract was signed; or that one had been prepared specially for the purpose. Clearly parol testimony would be competent to identify the card so selected or prepared, and to prove that the parties assented to and adopted it as the card to which the contract would apply. Suppose, thirdly, that no such card had been selected or prepared, but its form, contents and style

had been described verbally and assented to, and the plaintiff had agreed to insert it as so described. Such evidence may be resorted to, not for the promise it contains, but for the aid it affords in fixing the meaning and applying the general language of the written contract. The same conditions render the evidence offered by the defendant competent for similar purposes. The term 'his advertising chart' requires to be practically applied. The representations of the plaintiff are in the nature of a description of the vehicle by which the publication of the business card was to be effected; and his account of the disposition he proposed to make of the charts was a description of the extent and the sense in which it was to be an 'advertising chart.””

In Ganson v. Madigan, 15 Wis. 144, 153-4, the court said: "If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circumstantial." Accordingly, in that case, the action of the circuit court in admitting evidence by the defendant of the meaning put upon the words "a good team," in a contract containing a warranty that a certain machine should be capable with one man and a good team "of cutting and raking off twelve to twenty acres of grain a day," was sustained. The court

But it should be observed that it is not primarily the intention of the parties which the court is seeking, but the meaning of the words at the time and place when they were used. The fact that the parties intended their words to bear a certain meaning, would be immaterial were it not for the fact that the words either normally or locally might properly bear such meaning, and this is the basis of the rule in regard to equivocation.

§ 614. Technical meaning is sometimes given to language in violation of apparent intention.

The early lawyers dreamed of "a lawyer's paradise where all words have a fixed precisely ascertained meaning, and where if the writer has been careful, a lawyer having a document referred to him may sit in his chair, inspect the text and answer questions without raising his eyes." 50 Though little is left of this dream at the present day, there are some technical words and phrases that have acquired so definite a meaning in the law that it would be difficult to induce a court to give a contrary construction to the words especially in a formal instrument, though from the whole document and from the surrounding circumstances it was highly improbable that the parties attached to the words their technical signification. The

continued: "The word 'team,' as used in the contract, is of doubtful signification. It may mean horses, mules, or oxen, and two, four, six or even more of either kind of beasts. And yet we know very well that the parties had some definite purpose in using the word. The trouble is not that the word is insensible, and has no settled meaning, but that it at the same time admits of several interpretations, according to the subject-matter in contemplation at the time. It is an uncertainty arising from the indefinite and equivocal meaning of the word, when an interpretation is attempted without the aid of surrounding circumstances." It was earnestly insisted it meant any team that was necessary to pull the machine, whereas

the proof admitted showed the reference was to a team of two horses only. This case was cited and quoted from with approval in Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 68, 84 S. W. 76. See also Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105, 3 L. R. A. 859, where a particular meaning was given to the word "order."

49 Thus the mere fact that a note sued on was ambiguous as to the capacity in which defendants signed did not render admissible their testimony as to their undisclosed intentions in signing. Planters' Chemical & Oil Co. v. Stearnes, 189 Ala. 503, 66 So. 699.

50 Quoted from Thayer's Preliminary Treatise on Evidence, in 4 Wigmore, Evidence, § 2462.

rule in Shelley's case when applied must often have been recognized as violating the natural sense of a deed.51 So in insurance policies, conditions by repeated construction of the court acquire a definite meaning which it would be difficult if not impossible to overthrow in a particular case, however clearly extrinsic evidence might show that the parties attached another meaning to their words and one which, as an original question, they might reasonably bear. Especially in Marine Insurance policies this is true. Early decisions and customs established the meaning of the forms then in use, and "Since those decisions, and the recognition of those customs, merchants and underwriters have for many years continued to enter into policies in the same form. According to ordinary principle, then, the later policies must be held to have been entered into upon the basis of those decisions and customs. If so, the rules determined by those decisions and customs are part of the contract." 52 It is obvious that this presumption that parties know the technical legal meaning of the language which they use, and thereupon adopt that meaning may often be very artificial; 53 and it is a reasonable expectation and in accordance with the tendencies of the law, that the disposition of courts will be to give language less and less frequently an artificial meaning at variance with the apparent intention of the parties. 54

$1 See Broom, Legal Maxims (8th Eng. ed.), 426 et seq., for this and other cases of artificial meanings given to special words in wills. It must be supposed that the same construction would be given to the same words in settlements inter vivos or in contracts to make such settlements or wills.

52 Lohre v. Aitchison, 3 Q. B. D. 558, 562.

See infra, §§ 618, 650.

"In Utica City Nat. Bank v. Gunn, 222 N. Y. 204, 118 N. E. 607, 608, the court said: "The proper legal meaning, however, is not always the meaning of the parties. Surrounding circumstances may stamp upon a contract a popular or looser meaning. 、 .. To take the primary or strict meaning

is to make the whole transaction futile. To take the secondary or looser meaning is to give it efficacy and purpose. In such a situation, the genesis and aim of the transaction may rightly guide our choice." See also Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636, 85 S. E. 943; Hill v. Philo, 155 N. Y. S. 922. The common judicial attitude is shown by the language of the court in Propper v. Colson, 86 N. J. Eq. 399, 99 Atl. 385, 386. "The present case does not involve the meaning of words in a conversation between laymen, but of words used in a formal written instrument, the purpose of which is to express the mutual rights and obligations of the parties to it. In construing such in

§ 615. Adoption of existing law into a contract

It is commonly said that existing laws form part of a contract and are incorporated in it.55 If this is literally true, the

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struments the general rule, subject to few exceptions, is that the words contained therein shall be given their ordinary legal significance." See also infra, § 618. In Wallis v. Pratt, [1911] A. C. 394 (reversing s. c., [1910] 2 K. B. 1003), one who innocently sold seed which was in fact "giant sainfoin" as 'common English sainfoin" was held liable though the contract between buyer and seller provided "the sellers give no warranty expressed or implied as to growth, description or any other matters," on the ground that the seller had made a breach of "condition" though giving no warranty. It may be thought that the court was applying its own technical meaning to "warranty" rather than seeking the natural meaning of their words to the parties. See also Cotter v. Luckie, [1918] N. Zeal. L. R. 811.

55 Van Hoffman v. Quincy, 4 Wall. 535, 550, 18 L. Ed. 403; Rees v. Watertown, 19 Wall. 107, 121, 22 L. Ed. 72; Edwards v. Kearzey, 96 U. S. 595, 601, 24 L. Ed. 793; Seibert v. Lewis, 122 U. S. 284, 295, 7 S. Ct. 1190, 30 L. Ed. 1161; Northern Pac. R. Co. v. Wall, 241 U. S. 87, 60 L. Ed. 905; Southerı: Ry. Co. v. Bouknight, 70 Fed. 442, 446, 17 C. C. A. 181, 30 L. R. A. 823; Armour Packing Co. v. United States, 153 Fed. 1, 19, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400 n.; Seaboard Air Line R. Co. v. Railroad Commission of Alabama, 155 Fed. 792, 800; Martin v. Kennecott Copper Corp., 252 Fed. 207; State v. Tampa Water Works Co., 56 Fla. 858, 47 So. 358, 19 L. R. A. (N. S.) 183; McCaskill v. Union Naval Stores, 59 Fla. 571, 52 So. 961; Lynch v. Baltimore &c. R. Co., 240 Ill. 567, 571, 88 N. E. 1034; Metropolitan Life Ins. Co. v. Johnson, 49 Ind. App. 233, 94 N. E. 785; Long v. Straus, 107 Ind. 94, 6 N.

E. 123, 7 N. E. 763, 57 Am. Rep. 87; Swabey v. Boyers, 274 Mo. 332, 203 S. W. 204; Norris v. Tower, 102 Neb. 434, 167 N. W. 728; Hutchinson v. Ward, 114 N. Y. App. Div. 156, 99 N. Y. S. 708, 709; Graves v. Howard, 159 N. C. 594, 75 S. E. 998, Ann. Cas. 1914 C. 565; Hogan v. Utter, 175 N. C. 332, 95 S. E. 565; Weight v. Bailey, 45 Utah, 207, 147 Pac. 899; Hawes v. Wm. R. Trigg Co., 110 Va. 165, 65 S. E. 538. See also Haugen v. Sundseth, 106 Minn. 129, 134, 118 N. W. 666; Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411.

In Seaboard Air Line Ry. Co. v. Railroad Commission, 155 Fed. 792, 800, the court said of foreign corporations: "All their contracts, save in the exceptional cases stated, are made subject to the right of the state to expel them at pleasure. As 'the laws which exist at the time and place of the making of the contract, and where it is to be performed, enter into and perform part of it,' their contracts are made subject to the exercise of the right, and their expulsion after coming into the state and making contracts does not, therefore, deprive them of property without due process, or deny them the equal protection of the laws, or impair the obligation of their contracts, at least so far as they are concerned."

In Hutchinson v. Ward, 114 N. Y. App. Div. 156, 99 N. Y. S. 708, 709, the court said: "They were New Jersey contracts, and it must be assumed that it was intended by the parties that they should be controlled by the existing laws of that state; not only as to their binding force but as to their manner of enforcement. Existing laws giving rights to parties to a contract or limiting their rights, become a

whole law governing the performance of contracts is reduced to part of the construction of the contract; for on the supposition in question rules of law determining the rights of the parties would not be properly regarded as operating upon them irrespective of their expressed intention; but rather as based upon such intention. To be sure no great difference of result would generally be produced whether rules of law are sought first and it is then said that the parties have contracted to be guided by these rules, or whether some natural standards of interpreting the contract are first applied and then appropriate rules of law imposed upon the contract as thus interpreted. The former method of statement, however, is obviously artificial; and it seems unfortunate as a matter of terminology to put in the form of a fiction matters which may be stated accurately. To assume first that everybody knows the law, and, second, that everybody thereupon makes his contract with reference to it and adopts its provisions as terms of the agreement, is indeed to pile a fiction upon a fiction, and certainly without any necessity, for where different conclusions are reached by means of the fiction than would be reached without it, they are not preferable to the opposite ones. The fiction is analogous in its essence to that of the "social contract" and, like that, has a long history. It seems to have originated with Dumoulin, a French jurist of the seventeenth century as a doctrine of the conflict of laws in its application to the contract of marriage, 56 and it is obvious that a reason is furnished for

part of the contract as though specially set forth therein." Citing Union Natl. Bank v. Chapman, 169 N. Y. 538, 62 N. E. 672, 57 L. R. A. 513, 88 Am. St. Rep. 614; McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397; Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143.

"In Saul v. His Creditors, 5 Martin (N. S.), 569, 599, it is said: "It is evident, the opinions of the greater number of those who think that on the dissolution of the marriage, the law of the place where it was contracted should regulate the rights of the spouses to the property possessed by

them, is founded on an idea which first originated with Dumoulin, that where the parties marry without an express contract, they must be presumed to contract in relation to the law of the country where the marriage took place, and that this tacit contract follows them wherever they go.

"It is particularly worthy of remark, that Dumoulin, the founder of this system, was of opinion, that the statute regulating the community was real, and that it was to escape from the consequences of this opinion he supposed a tacit contract, which, like an express one, followed the parties

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