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Ch. IV. s. 2. but that a letter of the defendant's solicitor to the plaintiff's Form of the solicitor enclosing draft contract for approval, and referring to

Contract (Statute of an arrangeinent for sale by one principal to the other, with Frauds).

mention of premises and price, is not (m). Signature- The memorandum cannot be signed by one of the contracting contd. Agent must parties as the agent of the other; the agent must be a third be a third

person (n). Thus, a memorandum, written by the clerk of the person.

plaintiff in the absence of the defendant, that the defendant had called to say that he would be responsible to the plaintiff for goods supplied to a third person, is not a sufficient signature by the defendant or his agent (o), nor is a memorandum of a sale of goods written and signed by the seller's traveller, in the presence of and at the desire of the buyer, but in his own name (p), nor is

the signature of the auctioneer's clerk as “Witness, J. N." (9). Broker agent

But the same person may sign the contract, as the agent for for both

both parties (r). Thus, by the usage of business, a broker is the parties.

agent of both buyer and seller: so that his signature of the conAuctioneer. tract binds both parties within the statute (s), and so a sale by

auction is within the statute ; and the auctioneer may sign the

contract for both parties (t). Agent, how to The first and third sections of the statute require an be authorised. authorisation in writing of the agent (see p. 76, ante); but

the fourth (see p. 76, ante) does not (u). Does statute The question whether the statute applies to deeds, so as to apply to deeds?

require them, if their subject-matter be within the statute, to be (as is usual and desirable) signed as well as sealed, is still open ; and though both judges (x) and writers (y) (except Blackstone) have inclined more or less strongly towards excluding the statute, it is submitted that Blackstone's view (z) which best satisfies its letter and best satisfies its spirit also, signature (even by mark) being a larger manual act than the mere touching of a seal, is correct.

(m) Smith v. Webster (1876), 3 Ch. D. (0) See Aveline v. Whisson (1842), 4 49, Č. A., per James, L.J., Baggallay, M. & G. 801 ; Cooch v. Goodman (1842), J.A., and Lush, J., reversing Malins, V.-C. 2 Q. B. 580 (leases) ; Cherry v. Heming

(n) Farebrother v. Simmons (1822), 5 (1849), 4 Ex. 631 (contract beyond B. & Ald. 333; Sharman V. Brandt year). (1871), L. R., 6 Q. B. 720, Ex. Ch.

(y) See 1 Shep. Touch. by Preston, (0) Dixon v. Broomfield (1814), 2 Chit. Williams on Real Property, 19th ed., 205.

at p. 154 ; Leake on Contracts, 4th ed., (p) Graham v. Musson (1839), 7 Scott, at p. 87 ; Addison on Contracts, 10th ed., 769.

at p. 18; Pollock on Contracts, 7th ed., (7) Gosbell v. Archer (1835), 2 A. & E.500. P.

165 ;

Foa on Landlord and Tenant,
(r) As to what is evidence of this, see 3rd ed., at p. 9.
Durrell v. Evans (1862), 1 H. & C. 174 ; (z) See Black. Com. ii., 306, to the
Murphyv. Boese (1875), L. R., 10 Ex. 126. effect that under the Statute of Frauds

(*) Rucker v. Cammeuer (1794), 1 Esp. " signing seems to be as necessary as 105 ; Parton v. Crofts (1864), 16 C. B., sealing, though it hath been sometimes N. S. 11.

held” (citing 3 Lev. 1 (Le Mayne v. (t) Per Bayley, J., Kenworthy v. Scho- Stanley) and Stra. 764 (Warneford v. field (1824), 2 B. & C. 945, 947; Bartlett Warneford) both cases of wills) “that v. Purnell (1836), 4 A. & E. 792.

the one includes the other,”-repeated (u) See Graham v. Musson (1839), 5 in Steph. Com. i. Bk. II. Pt. I., with B. N. C. 603.

qualifying doubts.



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The construction of all written instruments belongs to the Constrnction Court alone, whose duty it is to construe them, as soon as the

of written

contracts is true meaning of the words in which they are couched, and the for the Court. surrounding circumstances, if any, have been ascertained as facts (a); and it is the duty of the jury, if a case be tried with a jury, to take the construction from the Court, either absolutely, if there be no words to be construed—as words of art, or phrases used in commerce--and no surrounding circumstances to be ascertained; or conditionally, where those words or circumstances are necessarily referred to them (b).

Where, however, the contract does not depend solely on written lliter, where documents, the question as to what such contract was, is properly wholly in

contract not one of fact (c).

writing. But the fact of a document having been lost, so as to let in parol evidence of its contents, does not make the construction of its contents a question for the jury (d).

The maxims which govern the exposition of contracts are the Rules the same at law and in equity (e); nor are they varied by the same at law

and in equity. circumstance of the contract being under seal (f).

(a) Per Lord Cairns, C., Bowes v. Shand (1877), 2 App. Cas. 455, 462.

(6) Per Cur., Neilson v. Harford (1841), 8 M. & W. 806.

(c) Moore v. Garuood (1849), Exch. 681, Ex. Ch.

(d) Berwick v. Horsfall (1858), 4 C. B., N. S. 450.

(e) i Fonb. Tr. Eq. 5th ed. 147, n. (b);
Eaton v. Lyon (1798), 3 Ves. 692 ; per
Lord Mansfield, C.J., Hotham v. East
India Company (1870), Doug. 272.

(f) Per Lori Ellenborough, C.J.,
Seidon v. Senate (1810), 13 East, 63, 74 ;
12 R. R. 299.

CH. V. s. 1. Construction of Contracts (General Rules).

Effect must be given to intention.

The common and universal principle is that an agreement ought to receive that construction which its language will admit, and will best effectuate the intention of the parties, and that greater regard is to be had to the clear intent of the parties than to any particular word which they may have used in the expression of their intent (9). Verba intentioni debent inservire (h).

But a party must not only make out a possible intention favourable to his view ; but must also show a reasonable certainty that the intention was such as he suggests (i).

Qualifications of this rule.

SECT. 2.- The Construction should be Reasonable.

As instances of the application of the very general rule that the construction must be reasonable, may be mentioned the following :

It is no defence to an action for not accepting a cargo of oil, that the casks which contained it were not well seasoned—the subjectmatter of the contract being the oil, and not the casks (k); and it being essential, as we shall see more fully hereafter, to consider the subject-matter of an agreement, in giving a meaning to the terms used therein. So, if a party to a contract promise payment without saying to whom, it must be understood that he promised

payment to him from whom the consideration moved (1). Supply of A bond was given with a condition to pay 1001. by six equal words omitted by mistake. instalments of 161. 13s. 4d. on certain days, “ until the full sum of

one pound should be paid : " and the Court held, that the word Hundred." "hundred” might be supplied (m). So where the condition of a

bond recited, that A. was indebted to B. in various sums, stated in pounds sterling and money of a smaller denomination, and that

the bond was given to secure payment of these sums; but in the “ Pounds." obligatory part the word pounds was omitted, it being merely

• stated that the obligor became bound "in 1770 of lawful money,

without stating what description of money ; it was held, that the word pounds might be supplied by reference to the condition (n).

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(9) Per Cur., Foril v. Beech (1848), 11 Q. B. 852, 866, Ex. Ch.

(1) See s. 18 of Sale of Goods Act, 1893, Ch. XIII. post.

(i) Per Cur., Pannell v. Mills (1846), 3 C. B. 625.

(k) Gover v, l'an Dadelzen (1837), 4

Scott, 453.

(1) See Banck's v. Camp (1833), 9 Bing. 604.

(m) Waugh v. Bussell (1814), 5 Taunt. 707 ; 15 R. R. 624.

(n) Coles v. Hulme (1828), 8 B. & C. 568. See other instances, ib. 574, n. (a).

And so the omission of the word "poundsin the body of a bill of exchange may be aided by the proper superscription of the sum on the face of the instrument (o).

CH, V. s. 2. Reasonable Construction of Contracts.

SECT. 3.- Construction should be Liberal.

The construction must be liberal, that is, the terms used in an Construction agreement must prevail according to their most comprehensive liberal." popular sense, unless there be something to show that they were meant to be used in a sense more confined (p). Thus, an indefinite expression may be understood universally, unless there be some reason to restrain it; e.g., the masculine may be understood to include both genders; as if a licence be given to kill any beast of chase in such a forest, except bucks, the exception must be taken to include does also, there being nothing to show that the male was used in opposition to the female (q). So it is laid down, that if two persons have goods in jointure, and give all their goods, not only do those they have in jointure, but their several goods also pass (r).

And in the case of mercantile contracts it would seem, that Mercantile although such a contract points out a mode of performance, and stipulates for the manner of payment in the event of that mode being adopted, it will not be so construed as to prevent a party who performs it in a way different from that specified, from maintaining an action thereon (s).


SECT. 4.- Construction should be Favourable.

The construction must be favourable, so that the agreement Construction

shall be may, if possible, be supported (t) nam verba debent intelligi cum

favourable. effectu, ut res magis valeat quàm pereat.

Again, if the words used in an agreement be susceptible of two Two senses. senses, one agreeable to, the other against law, the former sense

(0) Elliott's case (1777), 2 East, P. C. 951 ; 1 Leach, 175.

(P) See Whitehouse v. Liverpool Gas Company (1848), 5 C. B. 798; Mallan v. May (1844), 13 M. & W. 511, 517.

(9) Brooke, Exposit. des Termes, 39.
(r) Year Book, 19 Hen. 6, 41.
(s) Read v. Meniaet (1819), 7 C. B.

152 ; 18 L. J., C. P. 145.

(1) See Stratton v. Pettitt (1855), 16 C. B. 420 ; Russell v. Phillips (1850), 14 Q. B. 891, 901 ; Hall v. Betty (1842), 4 M. & G. 410; per Willes, C.J., Parkhurst v. Smith (1741), Willes, 327, 332, H. L. ; per Lord Mansfield, C.J., Goodtitle v. Bailey (1777), 2 Cowp. 597, 600.

Farourable Construction

CH. V. s. 4. shall be adopted (u); for magis de bono quàm de malo lex

intendit (x). Thus, a bond conditioned “ to assign all offices,” will of Contracts. be construed to apply to such offices only as are by law assign

able (y). And, upon the same principle, if by a particular construction, the agreement would be rendered frivolous and ineffectual, and the apparent object of the contract would be frustrated; but a contrary exposition, though per se less appropriate-looking to the words only-would produce a different effect; the latter interpretation shall be applied, if it can possibly be supported by anything in the contract or in the nature thereof. Thus, where the words of a guarantee were capable of expressing either a past or a concurrent consideration, the Court adopted the latter construction ; because the former would render the instrument

void (2). * Until.” Thus, generally, the word “until” is considered to admit of

different meanings, according to the subject-matter and context (a); “ From.' “from ” may be taken to mean either inclusive or exclusive (6);

the rule being, that although the word “from” is primâ facie

exclusive, yet its real meaning must depend on the circumstances “On." of the particular contract (c); "on " or“


”may mean either before the act done to which it relates, or simultaneously with the

act done, or after the act done, according as reason or good sense ** To." require (d); and “to” may be held to mean “ towards ” (e).

Sect. 5.Popular Meanings to be Adopted. As the meaning to be put on a contract is that which is the plain, clear, and obvious result of the terms used therein ; so these terms are to be understood in their plain, ordinary, and popular sense (f), unless they have, generally, in respect to the subject-matter—as by the known usage of trade or the likeacquired a particular sense, distinct from the popular sense of the

The popular
meaning of
words is to
be adopted.

(u) Co. Litt. 42 a.
(c) Co. Litt. 78 b.

(y) Harrington v. Kloprogge (1785), 2
B. & B. 678, n. (a).

(z) Steel v. Hoe (1849), 14 Q. B. 431.

(a) Per Williams, J., Wilkinson v. Gaston (1846), 9 Q. B. 137, referring to Rex v. Stevens (1804), 5 East, 244 ; and see Isaacs v. Royal Insurance Company (1870), L. R., 5 Ex. 296, in which

until” was held to be inclusive.

(6) Pugh v. Duke of Leeds (1777), 2 Cowp. 714 ; and see South Staffordshire

Tramways Co. v. Sickness and Accident Assurance Association, [1891] 1 Q. B. 402, where “ from” was held to be ex. clusive.

(c) Wilkinson v. Gaston (1846), 9 Q. B. 137.

(d) See per Cur., Reg. v. Arkwright (1848), 12 Q. B. 960, 970 ; Paynter v. James (1867), L. R., 2 C. P. 348, 354.

(e) Colledge v. Harty (1851), 20 L. J., Exch. 146; 6 Ex. 205.

(f) See Stanley v. Western Insurance Company (1868), L. R., 3 Ex. 71.

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