foreign parts. It is impossible for me to say that this stipulation is void. There may be great reason for protecting the captain from suits in foreign countries, where he may have no funds to answer the demands of the mariners; and it may be conducive to the interests of commerce that the mariners should have the strongest inducement to remain in the ship till the adventure is completed. The rate of wages might be in part determined by the condition that they were not demandable till the ship's return home. The agreement was made abroad, but it is transitory; and we are bound, as far as we are able, to give it the same construction and effect, which it would receive in the country where it was made." It seems that where money is due upon a contract, it is to be paid according to the currency of the place or country in which it is stipulated that the payment shall be made (n). Verba cartarum fortius accipiuntur contra proferentem. A deed or other instrument shall be taken most strongly against the grantor, or contractor. As if tenant in fee simple grant to any one "an estate for life" generally; it shall be construed an estate for the life of the grantee (6). If two tenants in common, grant a rent of ten shillings, this is several, and the grantee shall have ten shillings from each; but if they make a lease, and reserve ten shillings, they shall have only ten shillings between them (p). Even in the cases of guarantees, if there be any doubt, the contract shall be construed most strongly against the party who becomes bound (q). In the case of an exception in a lease, &c., it is a general rule of construction, that if there be any doubt about its meaning, the words of the exception, being the words of (n) 3 Chit. Com. L. 109; 1 Powell on Contr. 407; Chitty B. 8th ed. 433, 7th ed. 286; id. Index, tit. Foreign Laws and Money; Scott v. Berun, 2 B. & Ad. 78; post, Index, tit. Interest. (0) 2 Bla. Com. 380, cites Co. Lit. 42. Blackstone draws a distinction between an indenture and a deed-poll; "for the words of an indenture, executed by both parties, are to be considered as the words of them both: for though delivered as the words of one party, yet they are not his words only, because the other party has given his consent to every one of them. But in a deed-poll executed only by the grantor, they are the words of the grantor only, and shall be taken most strongly against him, Co. Lit. 134." In the case of contracts not under seal, there must be a reciprocity of assent and obligation, and yet the rule applies to such contracts where a doubt exists. In the case of crown grants, &c., the rule of construction is, that the instrument shall be taken most favourably for the King, J. Chitty, jun. on Prerogatives of the Crown, 391, &c. (p) 5 Co. 7 b; Plowd. 140; Co. Lit. 197 a; 267 b. (q) Hargreave v. Smee, 6 Bing. 244, 3 M. & P. 573, S. C. Vide per Best, C. J., Evans v. Whyle, 3 M. & P. 136. the lessor, are to be construed favourably for the lessce, and against the lessor (r). 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 ($). 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 (t). And where a man, for a good consideration, gave a note expressed to be "for money borrowed which I promisc never to pay," it was held that the word never might be rejected (u). 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 (x). 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 mus the 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 (y). If the contract be so ambiguous that no meaning can be extracted from it (r) The Earl of Cardigan v. Armitage, 2 B. & C. 197; per Bayley, J., Bullen v. Denming, 5 B. & C. 847; and Holroyd, J., id., 850; 5 (o. 10 b. See per Bayley, J., Rex v. Faraday, 1 B. & Ad. 281; as to an exception in a statute. And ante, 72, 73. In (s) Munn v. Baker, 2 Stark, R. 255. (t) Edis v. Bury, 6 B. & C. 433; 2 C. & P. 559, S. C., Chitty Jun. Bills; and see cases there cited. Edis v. Bury, the instrument was "I promise, &c.;" but it stated the name and address of another person in the place where the name, &c. of the drawer of a bill are usually inserted; and such person's name was written across the instrument. The court held it might be treated as a note, and then no notice to the maker of dishonour need be proved. (u) Cited by Lord Mansfield in Russell v. Langstaff, B. R. M. 21 G. 3; and in Peach v. Kay, Sitt. T. T. 1781; and per Lord Hardwicke, Simpson v. Vaughan, 2 Atk. 32. (x) See Chitty Jun. on B. Index, Fictitious Names; Chitty B. 8 ed. 64, 131, 357. (7) Bacon's Elem. c. 3; 2 Bla. C. 380; per Lord Eldon, Browning v. Wright, 2 B. & P. 22; per Bayley, J., Barton v. Fitzgerald, 15 East, 546; per Park, J., Nind v. Marshall, 1 B. & B. 335; per Cur. in Hargreave v. Smee, 6 Bing. 244; and 3 M. & P. 573. The French law is to the contrary. "Dans le doute, la convention s'interprète contre celui qui a stipulé et en favur de celui qui a contracté l'obligation." Code Civil, b. 3, tit. 3, art. 1162; and see Pothier, p. i. c. 1, s, 1., Art. 7, Evans's ed. vol. i. 58. Rognon, in his edition (1831,) of the Code, with any degree of moral certainty, it shall be treated as void (z). And in cases of penalties, or forfeitures (a); or where a harsh construction would work a wrong to a third person (b); 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 (c). The difference between specialties and contracts, not under seal, in respect to the liability of heirs and devisees, has been before noticed (d). 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 (e). 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 nullu est ambiguitas, ibi nulla expositio contra verba fienda est (ƒ). 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 shew that the real intention of the parties was at variance with the particular expressions of the written agreement (g). And this rule obtains, in general, even in a court of equity (h). observes on the words "Qui a stipulé" (a) See 1 Powell on Contracts, 397; 3 Chitty Com. L. 115. (b) Co. Lit. 42. (c) See 1 Chitty Pl. 5th ed. 21, 58; Pothier, p. 3, c. 7, art. 3. (d) Ante, 6, 7. (e) 1 Chitty Pl. 5th ed. 47; Platt Cov. 117. As to a covenant, &c. to several persons, 1 Chitty PL. 9, &c. (f) Co. Lit. 147a; Vattel's Law of Nations, by Chitty, 224; see ante, 66 as to this rule. (9) Countess of Rutland's Case, 5 Coke, 26; Bac. Elem. Rule 23; 2 Pothier, by Evans, 37, 203; see Phillipps and Starkie on Evidence; Meres v. Ansell, 3 Wils. 275. (h) Hare v. Shearwood, 1 Ves. jun. 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 shew 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 (i). This is a strong case, for the parol evidence would have shewn that the contract was not meant to be illegal; and it did not expressly 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 (k). Therefore, even in the instance of a mercantile contract in writing, although the particular meaning of peculiar mercantile expressions may, as before observed, be shewn by parol testimony (2), 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 admitted (m). Where a policy of insurance in the common form expressed " that the insurance on the said ship shall continue 241; Jordan v. Sawkins, id. 402; Cookes v. Mascal, 2 Vern. 34; Jackson v. Cater, 5 Ves. jun. 688; Clinan v. Cooke, 1 S. & L. 22; Gordon v. Hertford, 2 Madd. 106; Clowes v. Higginson, 1 V. & B. 524; and cases, 2 E. Chitty Eq. Index, 974, tit. Practice, xxxviii. There are, however, some cases besides those of fraud, in which equity will relieve against and correct 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 (n). 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 the buyer was bound to reject the contract, if he was dissatisfied with it at the time of examining the commodity and Heath, 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 (). And if a written agreement be for the hire of a vessel, to be made ready to take on board forthwith;" evidence is inadmissible to shew that the parties agreed that the vessel should be ready in two days (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 (q), 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 terins 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 was entitled to an allowance for foldage, from the in-coming tenant. The lease however specified certain payments to be made by the in-coming to the out-going tenant at the time of quitting the premises, among which there was not included any payment for foldage. It was held that the terms of the lease excluded the 416, cited in Phil. Ev. 6th ed. 539, (0) Yeates v. Pim, Holt N. P. C. 95; S. C., in 6 Taunt. 546, and 2 Marsh. R. 141. (p) Simpson v. Henderson, 1 M. & Mal. 300. (q) See Smith v. Wilson, cited ante, 76, that the term, one thousand rabbits, in a lease, may be shewn to mean one thousand two hundred. (r) Post, 89; Holding v. Pigott, 7 Bing. 465; 5 M. & P. 427, S. C. Ante, 21. (t) Boraston v. Green, 16 East, 71 (u) 2 B. & Ald. 746. See post, 89. |