PART II. * CHAPTER I. CONSTRUCTION AND INTERPRETATION OF CONTRACTS. (a) * 491 SECT. I. General Purpose and Principles of Construction. THE importance of a just and rational construction of every contract and every instrument, is obvious. But the importance of having this construction regulated by law, guided always by distinct principles, and in this way made uniform in practice, may not be so obvious, although we think it as *492 certain and as great. If any one contract is properly construed, justice is done to the parties directly interested therein. But the rectitude, consistency, and uniformity of all construction enables all parties to do justice to themselves. For, then all parties, before they enter into contracts, or make or (a) The terms "interpretation" and "construction" are used interchangeably by writers upon the law. A distinction has been taken between them by Dr. Lieber, in his work upon "Legal and Political Hermeneutics." Interpretation as defined by him is "the art of finding out the true sense of any form of words; that is, the sense which their author intended; and of enabling others to derive from them the same idea which the author intended to convey." On the other hand, construction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text,- conclusions which are in the spirit, though not within the letter of the text." See "Legal and Political Hermeneutics," ch. 1, sec. 8; ch. 3, sec. 2; ch. 4 and ch. 5. Interpretation properly precedes construction, but it does not go beyond the written text. Construction takes place, where texts to be interpreted and construed, are to be reconciled with the rules of law, or with compacts or con stitutions of superior authority, or where we reason from the aim or object of an instrument or determine its application to cases unforeseen and unprovided for. The doctrine of cy pres belongs to construction. Rules of interpretation and construction should also be carefully distinguished from rules of law. See the able note of Mr. Preston, in his edition of Sheppard's Touchstone, p. 83; also, per Parke and Rolfe, BB., in Keightley v. Watson, 3 Exch. 716, quoted ante, vol. 1, pp. 17, *18. It is to be observed, also, "that when a general principle for the construction of an instrument is laid down, the court will not be restrained from making their own application of that principle, because there are cases in which it may have been applied in a different manner. Per Lord Eldon, C. J., in Browning v. Wright, 2 B. & P. 24. And see, to the same effect, the remarks of Lord Kenyon, in Walpole v. Cholmondeley, 7 T. R. 148. " accept instruments, may know the force and effect of the words they employ, of the precautions they use, and of the provisions which they make in their own behalf, or permit to be made by other parties. It is obvious, that this consistency and uniformity of construction can exist only so far as construction is governed by fixed principles, or, in other words, is matter of law. And hence arises the very first rule; which is, that what a contract means is a question of law. It is the court, therefore, that determines the construction of a contract. They do not state the rules and principles of law by which the jury are to be bound in construing the language which the parties have used, and then direct the jury to apply them at their discretion to the question of construction; nor do they refer to these rules, unless they think proper to do so for the purpose of illustrating and explaining their own decision. But they give to the jury, as matter of law, what the legal construction of the contract is, and this the jury are bound absolutely to take. (b)1 * 493 * An apparent exception occurs not unfrequently, where unusual, or technical, or official words are used, and their meaning is to be gathered from experts, or from those acquainted with the particular art to which these words refer, or from authoritative definitions. The evidence on this point may be conflicting; and then it presents a question for the jury. But the question is rather analogous to that presented by words obscurely (b) "The construction of all written instruments belongs to the court alone. Per Parke, B., in Neilson v. Harford, 8 M. & W. 806, 823. See Hutchison v. Bowker, 5 M. & W. 535; Perth Amboy Man. Co. v. Condit, 1 N. J. 659; Rogers v. Colt, id. 704; Brown v. Hatton, 9 Ired. 419; Wason v. Rowe, 16 Vt. 525; Eaton v. Smith, 20 Pick. 150; Hitchen v. Groom, 5 C. B. 515; Morrell v. Frith, 3 M. & W. 402; Brown v. Orland, 36 Me. 376; Begg v. Forbes, C. B. 1855, 30 Eng. L. & Eq. 508; Rapp v. Rapp. 6 Penn. St. 45. The case of Lloyd v. Maund, 2 T. R. 760, seems contra, but that case was substantially overruled in Morrell v. Frith, 3 M. & W. 402. "If I am called on to give an opinion," said Parke, B., "I think the case of Lloyd v. Maund is not law." Where the evidence of a contract consists in part of written evidence, and in part of oral communications, or other unwritten evidence, it is left to the jury to determine upon the whole evidence what the contract is. Edwards v. Goldsmith, 16 Penn. St. 43; Bomeisler v. Dobson, 5 Whart. 398; Morrell v. Frith, 3 M. & W. 404, per Lord Abinger. - In the case of libel, the meaning of the document forms part of the intention of the parties, and as such intention is a question for the jury, the document is submitted to them, the judge giving the legal definition of the offence. Parmiter v. Coupland, 6 M. & W. 108; per Parker, C. J., in Pierce v. The State, 13 N. H. 536, 562; per Lord Abinger, in Morrell v. Frith, 3 M. & W. 402. So on a prosecution for sending a threatening letter, the jury will, upon examination of the paper, decide whether it contains a menace. Girdwood, 2 East, P. C. 1120, 1 Leach's Crown Cases, 169. Rex v. 1 The construction of a contract, unless there is something peculiar to the words, by reason of the custom of the trade to which the contract relates, is for the court. Per Lord Cairns, C., in Bowes v. Shand, 2 A. C. 455. — K. written or half erased, and which may be read in more than one way. In all such cases, it is a question of fact for the jury, what is the word used, or what is its specific meaning in this contract; and it is a question of law, what effect this word used with this meaning has upon the construction of the contract. (c) And whenever the words are of doubtful meaning the practical interpretation of the parties has much weight. (cc) (x) * *The principles of construction are much the same at 494 law and in equity. (d) Indeed, these principles are of necessity very similar, whether applied to simple contracts, to deeds, or to statutes. (y) There are differences, but in all these (c) "When a new and unusual word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage. But when no new word is used, or when an old word, having an established place in the language, is not apparently used in any new, technical, or peculiar sense, it is 1 Where the figures "$50" were on the margin of a note, and it was uncertain whether the writing on its face indicated fifty or sixty dollars, the court, on oral evidence, left it to the jury to decide the actual amount intended, Paine v. Ringold, 43 Mich. 341; and where one party said, “Go on and cultivate my farm and raise crops, and I will do what is right by you," the jury and not the court must determine whether or not the remark refers to making payments as claimed by the one so directed; McKenzie v. Sykes, 47 Mich. 294. See also Gibbs v. Gilead Soc., 38 Conn. 153. — K. (x) The agreement will be upheld if possible, as to both interpretation and validity. Alfree v. Gates, 82 Iowa, 13, 47 N. W. 993; Bergen v. Frisbie, 125 Cal. 168; 57 Pac. 784. But when the parties have expressed the matter of their agreement in such uncertain and imperfect terms that it is impossible to ascertain any definite meaning, the agreement is either void or is to be fixed by the practical construction given to it by the parties. Ex parte Baxter, [1892] 2 Q. B. 478; Davis v. Shafer, 50 Fed. 764; Long-Bell Lumber Co. v. Stump, 86 Fed. 574; Wallace v. Ryan, 93 Iowa, 115, 61 N. W. 395; Pratt v. Prouty, 104 Iowa, 419, 73 N. W. 1035; Hill v. Duluth, 57 Minn. 231, 58 N. W. 902. The repeated use of "&c. " in a contract does not necessarily render it thus uncertain, even in a suit for its specific performance. Parker v. Taswell, 2 De J. & J. 559. (y) When an obligation is imposed by statute, which is to be enforced as if it arose ex contractu, as is often the case as to claims against the government, there is no contract, but the obligation arises er lege. Murdock Grate Co. v. Com., 152 Mass. 28, 30, 24 N. E. 854, 8 L. R. A. 399. Every clause of an agreement which is confirmed by a statute has statutory validity, so that no provision thereof can be objected to on the ground that it is void for uncertainty or remoteness. Manchester Ship Canal Co. v. Manchester Racecourse Co., [1901] 2 Ch. 37, [1900] 2 Ch. 352. An interlocutory order of court imposing double term fees is enforceable cases the end is the same; and that is the discovery of the true meaning of the words used. So too, whether the instrument to be construed has a seal or not, the same rules and principles of construction will be applied to it. (e) SECTION II. OF THE EFFECT OF INTENTION. The first point is, to ascertain what the parties themselves meant and understood. But, however important this inquiry may be, it is often insufficient to decide the whole question. The rule of law is not that the court will always construe a contract to mean that which the parties to it meant; but rather that the court will give to the contract the construction which will bring it as near to the actual meaning of the parties as the words they saw fit to employ, when properly construed, and the rules of law will permit. In other words, courts cannot adopt a construction of any legal instrument which shall do violence to the rules of * 495 languages, or to the rules of law. (f) Words must not be forced away from their proper signification to one entirely different, although it might be obvious that the words used, either through ignorance or inadvertence, expressed a very different meaning from that intended. Thus, if a contract spoke of "horses," it would not be possible for a court to read this word "oxen," although it might be made certain by extrinsic evi* 496 dence that it was so intended. (g) So if parties used in * a (e) "The same intention must be collected from the same words of a contract in writing, whether with or without a seal." Per Lord Ellenborough, in Seddon v. Senate, 13 East, 74; Robertson v. French, 4 East, 130, 135; per Tindal, C. J., in Hargrave v. Smee, 3 Moore & P. 581; per Shaw, C. J., in Kane v. Hood, 13 Pick. 282. (f) "Whenever," says Willes, C. J., in Parkhurst v. Smith, Willes, 332, "it is necessary to give an opinion upon the doubtful words of a deed, the first thing we ought to inquire into is, What was the intention of the parties? If the intent be as doubtful as the words, it will be of no assistance at all. But if the intent of the parties be plain and clear, we ought if possible to put such a construction on the doubtful words of the deed as will best only by proper proceedings in the case, and not by an independent action of con answer the intention of the parties, and reject that construction which manifestly tends to overturn and destroy it. I admit, that, though the intent of the parties be never so clear, it cannot take place contrary to the rules of law, nor can we put words in a deed which are not there, nor put a construction on the words of a deed directly contrary to the plain sense of them." (9) This important rule is admirably expounded by Lord Chief Baron Eyre, in his opinion before the House of Lords in the great case of Gibson v. Minet, 1 H. Bl. 569, 614, who laid it down as a general rule respecting the interpretation of deeds, that all latitude of construction must submit to this restriction, namely, that the words may bear the sense which by construction is put upon them. If we step tract. Knight v. Hurley, 155 Mass. 486, 29 N. E. 1149. contract technical words of the law-merchant, such as average, or agio, or grace; these words could not be wrested from their customary and established meaning, on the ground that the parties used them in a sense which had never before been given to them. (h) But words will be interpreted with unusual extent of meaning, and held to be generic rather than specific, and thus made to cover things which are collateral rather than identical, if the certain meaning of the parties, and the obvious justice of the case require this extent of signification. Thus the word "men" will be interpreted to mean "mankind," and to include women; (i) and the word "bucks" has been construed to include "does," and the word "horses" construed to mean mares." (j)1 A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in fact used by a mere verbal error in copying or writing, such error might be corrected by a court of equity, upon a bill filed for that purpose; and the instrument so corrected would be looked upon as the contract which the parties had made, and be interpreted accordingly.(k) But this jurisdiction is confined strictly to those cases where different language has been used from that which the parties intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties supposed and intended them to bear, still this actual meaning would, generally, if not always, be 497 held to be their legal meaning. (1) Upon sufficient proof that the contract did not express the meaning of the parties, it might be set aside; but a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make. (x) 1 "Cattle" has been construed to include hogs, Decatur Bank v. St. Louis Bank, 21 Wall. 294; "timber" to include railroad ties, Kollock v. Parcher, 52 Wis. 393; "flax," raised for seed, not for fibre, as "grain," within the meaning of the word as used by the parties to a policy of insurance, Hewitt v. Watertown Ins. Co., 55 Iowa, 323; and "patterns," as tools, Lovewell v. Westchester Ins. Co., 124 Mass. 418.-K. (x) Equity usually relieves for mistake only when there is fraud or the mistake is mutual. Benn v. Pritchett, 163 Mo. 560, 63 S. W. 1103; Grant v. Baird, 61 |