certain things only, and therefore the admissible evidence is limited to those circumstances of and concerning which they used those words: see Graves v. Legg (1854), 9 Ex. 709; 23 L. J. Ex. 228."— River Wear Commissioners v. Adamson (27th July, 1877), 2 App. Cas. 74%, at p. 764; 47 L. J. Q. B. 193, at p. 202, Lord Blackburn. "Now I apprehend that, in order to construe a written document, the Court is entitled to have all the facts relating to it, and which were existing at the time the written contract was made, and which were known to both parties. Certain facts existing at a time when a written contract is made are sometimes customs of trade or the ordinary usages of trade; sometimes the course of business between the parties; sometimes they consist of a knowledge of the matter about which the parties were negotiating. The Court is entitled to ask for those facts, to enable it to construe the written document; not simply because they are customs of trade, or the course of business between the parties, but because they are facts which were existing at the time, and which have a relation to the written contract, and which must be taken to have been known by both parties to the contract."-Lewis v. Great Western Rail. Co. (21 Dec. 1877), 3 Q. B. D. 195, at p. 208; 47 L. J. Q. B. 131, at p. 136, Brett, L. J. See also ante, p. 90. Customs and Usages. Evidence of customs and known usages is receivable unless it is repugnant or inconsistent with the written contract. "The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain the nature and extent of their contracts, arising, not from express stipulations, but from mere implications and presumptions, and acts of a doubtful or equivocal character. It may also be admitted to ascertain the true meaning of a particular word or of particular words in a given instrument, when the word or words have various senses, some common, some qualified, and some technical, according to the subject-matter to which they are applied. But I apprehend that it can never be proper to resort to any usage or custom to control or vary the positive stipulations in a written contract, and à fortiori, not in order to contradict them. An express contract of the parties is always admissible to supersede, or vary, or control a usage or custom: for the latter may always be waived at the will of the parties. But a written and express contract cannot be controlled or varied, or contradicted by a usage or custom; for that would not only be to admit parol evidence to control, vary, or contradict written contracts, but it would be to allow mere presumptions and implications, properly arising in the absence of any positive expressions of intention, to control, vary, or contradict the most formal and deliberate declarations of the parties.”—The Reeside (1837), 2 Sumn. 567, at pp. 569, 570, Story, J. 66 'In all contracts, as to the subject-matter of which known usages prevail, parties are found to proceed with the tacit assumption of these usages; they commonly reduce into writing the special particulars of their agreement, but omit to specify these usages, which are included, however, as of course, by mutual understanding. Evidence, therefore, of such incidents is receivable. The contract, in truth, is partly express and in writing, partly implied or understood and unwritten. But in these cases a restriction is established on the soundest principle, that the evidence received must not be of a particular which is repugnant to, inconsistent with, the written contract. Merely that it varies the apparent contract is not enough to exclude the evidence, for it is impossible to add any material incident to the written terms of contract without altering its effect, more or less."-—Brown v. Byrne (1854), 3 El. & Bl. 703, at pp. 715, 716; 23 L. J. Q. B. 313, at p. 316, Coleridge, J., delivering the judgment of the Court (Coleridge, Wightman, Erle and Crompton, JJ.). a or See also "Mercantile Instruments," "Customs and Usages," post. 66 Contemporaneous and Continuous Usage. Contemporaneous and continuous usage is of the greatest efficacy in law, for determining the true construction of obscurelyframed documents."-Hebbert v. Purchas (1871), L. R. 3 P. C. 605, at p. 650; 40 L. J. Eccl. 33, at p. 48, Lord Hatherley, L. C. Contemporanea Expositio. Optimus interpres rerum usus.-2 Inst. 282; 2 Rep. 81. "Now this that hath been said doth agree with our books, and therefore it is benedicta expositio, when our ancient authors, and our yeare books, together with constant experience doth agree." 2 Coke, Inst., ch. xiii. p. 181. 66 Subsequent Acts of Parties. -- The acts of the parties done under the contract can be looked a to ascertain the intention, if the words of the contract are ambiguous, or to show that the contract does not express that which the parties intended to express in it. Upon the general and leading principle in such cases, we are to look to the words of the instrument and to the acts of the parties to ascertain what their intention was; if the words of the instrument be ambiguous, we may call in aid the acts done under it as a clue to the intention of the parties."-Doe d. Pearson v. Ries (1832), 8 Bing. 178, at p. 181, Tindal, C. J. "There is no better way of seeing what they intended than seeing what they did, under the instrument in dispute."-Chapman v. Black (1838), 4 Bing. N. C. 187, at p. 193, Tindal, C. J. "I do not deny that facts existing at the time of making the agreement may be admissible to assist the Court in determining the meaning of the language; nor do I deny that an act done or letter written after the agreement may be evidence of a fact existing at the time, material to the right interpretation of the agreement. But no point of law can, I apprehend, be better settled than this: that in construing an agreement, no acts of the parties subsequent to the making of it are (as such) admissible for the purpose of determining its meaning. The acts of the parties subsequent to the agreement may be material to show that a writing does not express that which the parties intended to express in it; and proof of that may be a reason why this Court should refuse to act upon the written agreement. But that is a very different thing from deducing from the acts of the parties the meaning of the agreement itself.”—Munro v. Taylor (1850), 8 Ha. 51, at p. 56, Sir L. Shadwell, V.-C. "It is true that the parties interested have acted upon the agreement for more than forty years, and their conduct shows that they have always understood it, until lately, as meaning what the defendants contend it does mean. This circumstance renders it necessary for the Court to be careful not lightly to come to the conclusion that the parties have been for many years labouring under a mistake. But the agreement of 1854 cannot be regarded as an ancient document, the language of which may not now convey the same meaning as it did when written, and the language of which may therefore be properly construed by the light of contemporaneous and long usage. Wadley v. Bayliss (1814), 5 Taun. 752, was strongly relied upon by the appellants in support of their contention that the construction for many years put on the document by the parties themselves ought to be adopted by the Court in preference to the meaning which the Court would put upon it, apart from the conduct of the parties themselves. But Wadley v. Bayliss (1814), 5 Taun. 752, was the case of an ambiguous inclosure award, and the acts of the occupiers under it were admissible against them. That case must be compared with other decisions, such as Clifton v. Walmesley (1794), 5 T. R. 564, which is much more like the present case. On looking into the authorities-amongst them Clyde Navigation Trustees v. Laird (1883), 8 App. Cas. 658, at pp. 670, 673-I have come to the conclusion that the rights of the parties must be decided now as the Court would have decided them as soon as the agreement became binding, and before the parties had shown by their conduct how they understood it.”—Lord Hastings v. North Eastern Railway, [1899] 1 Ch. 656, at pp. 663, 664; 67 L. J. Ch. 315, at pp. 317, 318, Lindley, M. R. "The chief argument used to give an unnatural construction of the words [in a deed] is that the parties have so acted during a period of forty years that the only reasonable inference to be derived from their conduct is that they have understood and acted on their bargain in a sense different from that which the words themselves convey. I am of opinion that if this could be truly asserted it is nothing to the purpose. The words of a written instrument must be construed according to their natural meaning, and it appears to me that no amount of acting by the parties can alter or qualify words which are plain and unambiguous.”—North Eastern Railway v. Lord Hastings, [1900] A. C. 260, at p. 263; 69 L. J. Ch. 516, at p. 518, Earl of Halsbury, L. C. Subsequent Declarations of Parties. To construe a contract the circumstances and grounds upon which the contract was entered into can be looked at, but subsequent declarations and admissions, either verbal or written, cannot. "It is always legitimate to look at all the co-existing circumstances in order to apply the language, and so to construe the contract; but subsequent declarations showing what the party supposed to be the effect of the contract are not admissible to construe it."--Lewis v. Nicholson (1852), 18 Q. B. 503, at p. 510; 21 L. J. Q. B. 311, at p. 315, Lord Campbell, C. J. "I think that subsequent admissions, whether in writing or not, are not to be taken into account by us in construing the written instrument in which the contract was contained."-Ibid., at p. 514; L. J. at p. 317, Erle, J. Altered Circumstances. If the continuance of the existence of some particular specified thing is implied, the parties are excused in case before breach performance becomes impossible from the perishing of the thing without default of the contractor. "Where, from the nature of the contract, it appears that the parties must from the beginning have known that it could not be fulfilled, unless when the time for the fulfilment of the contract arrived some particular specified thing continued to exist, so that, when entering into the contract, they must have contemplated such continuing existence as the foundation of what was to be done; there, in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible from the perishing of the thing, without default of the contractor."-Taylor v. Caldwell (1863), 3 B. & S. 82, at p. 833; 32 L. J. Q. B. 164, at p. 166, Blackburn, J. (cited by Lindley, L. J., in Turner v. Goldsmith, [1891] 1 Q. B. 544, at pp. 549, 550; 60 L. J. Q. B. 247, at p. 250; and by Jessel, M. R., in In re Arthur (1880), 14 Ch. D. 603, at p. 608; 49 L. J. Ch. 556, at p. 558; and by Vaughan Williams, L. J., in Krell v. Henry, [1903] 2 K. B. 740, at p. 748; 72 L. J. K. B. 794, at p. 796). "What is the view expressed in Jackson v. The Union Marine Insurance Co. (1873), L. R. 8 C. P. 572, at p. 581; 42 L. J. C. P. 284, at pp. 288, 289? I read, 'These authorities seem to support the proposition, which appears on principle to be very reasonable, that where a contract is made with reference to certain anticipated circumstances, and where, without any default of either party, it becomes wholly inapplicable to, or impossible of application to any such circumstances, it ceases to have any application; it cannot be applied to other circumstances which could not have been in the contemplation of the parties when the contract was made.'' |