day work; that the defendants contended that accounts of all the work done ought to have been delivered, according to the unambiguous language of the contract; and that the plaintiff then tendered the evidence of architects and builders, to prove that the accounts delivered were sufficient, and that it was the custom, or common practice, in the building trade, to deliver accounts of such matters only as the said accounts contained, and that, in reference to extra works capable of being measured, it was not usual to deliver any account of them; which evidence was objected to by the defendants, but received by the arbitrator. Bovill (Tompson Chitty with him), for the plaintiff : First, there is no ground for sending back the case to the arbitrator. He was not required, by the submission, to state any points which might arise; but was merely empowered to state a case according to his discretion; and he has set forth sufficient facts to raise the first point. (The COURT here stated that they were of that opinion, and that the rule must be discharged, with costs.) Secondly, the arbitrator was clearly right in admitting parol evidence to explain the term "weekly account," that being, as he has found, a term of art in the building trade. (BLACKBURN, J.: Grant v. Maddox (1) is an authority in your favour.) Lush, contrà: The case is not within the principles upon which parol evidence is admissible to explain written documents. The parol evidence, here, was not restricted to the meaning of an ambiguous word or expression, but was admitted to contradict the plain meaning of the words "a weekly account of the work done thereunder," i.e. under the direction of the architect, and to prove that those words were satisfied by the delivery of accounts of extra work not done under such direction. Grant v. Maddox (1) is distinguishable. Parol evidence was properly admitted, in that case, to show that, by the word "year" in the contract. there in question, the theatrical year was intended. (BLACKBURN, J.: Does not the principle of that decision show that evidence is admissible to explain that, by a "weekly account of the work," an account of certain portions of weekly work was meant? ALDERSON, B.'s judgment makes strongly against the present defendants. He says, "It is perfectly true that you have no right to qualify or alter the effect of a written contract (1) 71 R. R. 815 (15 M. & W. 787). MYERS v. SARL. [311] MYERS ľ. SARL. [312] [313] [*314] by parol evidence; but it is perfectly competent to you to qualify or alter by parol evidence the meaning of the words which apparently form the written contract, and to insert the true words which the parties intended to use. That is not to alter the contract, but to show what the contract is. Wherever the words used have, by usage or local custom, a peculiar meaning, that meaning may be shown by parol evidence. Here the contract is, that the plaintiff is to be paid, for three years, a salary of 51., 6l., and 71. per week in those years. That means, according to the evidence and the finding of the jury, that she is to be paid so much per week during every week that the theatre *is open in those years. You seek to read the words "a weekly account of the work done" as equivalent to "a weekly account of all the work done.") * That is the fair meaning of the words, and it would be contradicted by the parol evidence. Blackett v. Royal Exchange Assurance Company (1) is in point. * In Magee v. Atkinson (2) it was held that the defendant, who had signed a contract in his own name, could not be allowed to show that he had signed it only as a broker, although he was known to be so; and that paro! evidence of a custom in Liverpool, where the contract was made, to send in brokers' notes without disclosing the principal's name, was properly rejected. (COCKBURN, Ch. J.: There are two cases referred to in Park on Marine Insurance, Vol. I. pp. 23, 24 (ed. 8). In one of these, Ross v. Thwaite (3), Lord MANSFIELD, Ch. J., was of opinion that evidence of the usage of underwriters was admissible to show that goods lashed on deck are not within a general policy on goods; and that when such goods are intended to be insured they are always insured by name, and the premium is greater. In the other, Backhouse v. Ripley (4), CHAMBRE, J., ruled the same point.) Lord LYNDHURST, C. B., in the judgment in Blackett v. Royal Exchange Assurance Company (5), distinguishes those cases, and shows that they proceeded *upon a different principle, namely, that on an ordinary insurance on goods the underwriter is entitled to expect that they shall be stowed in the usual part of the ship; and that a usage that goods stowed in a more dangerous part are not covered by an ordinary policy, but require a distinct explanation to the underwriter of the nature of the risk, (1) 37 R. R. 695 (2 Cr. & J. 244). (4) C. P., sittings after Mich. T. 1802. (5) 37 R. R. 695, 700 (2 Cr. & J. 244, 250). is not at variance with any part of the policy, but is a portion of the fairness which ought always to be observed in contracts. (BLACKBURN, J.: PARKE, B., delivering the judgment of the COURT in Hutton v. Warren (1), says, "It has long been settled, that, in commercial transactions, extrinsic evidence of custom and usage is admissible to annex incidents to written contracts, in matters with respect to which they are silent.") The contract, here, is not silent on the matter with respect to which the parol evidence was tendered. In Charlton v. Gibson (2) CRESSWELL, J., at Nisi Prius, refused parol evidence to explain the sense in which the word "building" was used in a written agreement for winning stone "for the purpose of building certain cottages. Lastly, as to the second point stated by the arbitrator for the opinion of the Court, it is clear that the sketches in question were not such directions under the hand of the architect as were contemplated by the contract. Tompson Chitty, in reply: Upon the first point, Symonds v. Lloyd (3) is a further authority in the plaintiff's favour. The plaintiff does not dispute the correctness of the arbitrator's determination on the second point. (COCKBURN, Ch. J.: We are all agreed, as to the first point, that the parol evidence was properly *admitted. The second point is too clear for argument, though it is a shabby defence to set up.) COCKBURN, Ch. J.: I am of opinion that the course pursued by the arbitrator was both proper and correct in point of law, and that the parol evidence was rightly received. The duty of the Court, or of an arbitrator who is in the place of the Court, is so to construe a contract as to give effect to the intention of the parties. Now, although parol evidence is not admissible to contradict a contract the terms of which have but one ordinary meaning and acceptation, yet if the parties have used terms which bear not only an ordinary meaning, but also one peculiar to the department of trade or business to which the contract relates, it is obvious that due effect would not be given to the intention, if the terms were interpreted according to their ordinary and not according to their peculiar signification. Therefore, whenever such a question has come before the Courts, it has always been held that where the terms of the contract under consideration have, besides their ordinary and popular sense, also a peculiar and scientific meaning, (1) 46 R. R. 368, 377 (1 M. & W. (2) 1 Car. & K. 541. 466, 475). (3) 120 R. R. 335 (6 C. B. N. S. 691). MYERS 1. SARL. [ *316] [ *317 ] the parties who have drawn up the contract with reference to some particular department of trade or business, must have intended to use the words in the peculiar sense. This is but an application of the well-known rule that the interpretation of contracts must be governed by the intention of the parties. And from the nature of the case, the peculiar meaning of the terms used can be discovered only by means of parol evidence. This is well explained by Mr. Starkie in his work on Evidence, Vol. III. p. 778 (ed. 3), who says: "Where terms are used which are known and understood by a particular class of *persons in a certain special and peculiar sense, evidence to that effect is admissible for the purpose of applying the instrument to its proper subject-matter; and the case seems to fall within the same consideration as if the parties in framing their contract had made use of a foreign language, which the Courts are not bound to understand. Such an instrument is not on that account void; it is certain and definite for all legal purposes, because it can be made so in evidence through the medium of an interpreter. Conformably with these principles, the Courts have long allowed mercantile instruments to be expounded according to the usage and custom of merchants, who have a style and language peculiar to themselves, of which usage and custom are the legitimate interpreters." I read that passage, not only because it has my entire approval, but because it has also had that of Lord WENSLEYDALE, when a Judge of this Court, in his judgment in Smith v. Wilson (1). To apply that principle to the present case: the parties to the building contract before us have used the term "weekly account of work;" which expression has been shown by parol evidence to have a peculiar signification in the building trade; to relate, not to all the work done, but to a particular portion of the work done, as to which such weekly accounts as have been rendered by the plaintiff are peculiarly necessary. Mr. Lush indeed says that, because the words have a plain general meaning, parol evidence is not admissible to explain them; and cites, as an authority for that contention, the case of Blackett v. Royal Exchange Assurance Company (2), in which Lord LYNDHURST, C. B., delivering the *judgment of the COURT, held that a policy upon ship, covering boats by its general terms, could not be restricted in its operation by parol evidence of a usage at Lloyd's that boats slung on the ship's quarter were not protected by the insurance. I, of course, am bound by that case, so far as it goes; but I am not disposed to carry it any further, or to apply it to any circum (1) 37 R. R. 536, 540 (3 B. & Ad. (2) 37 R. R. 695 (2 Cr. & J. 244). 728, 733). stances not exactly similar. I think the case goes to the extreme verge of the law: for I am unable to see why the evidence was not admissible to show that, by general understanding amongst insurers, the word "boats" did not mean all boats. However, the case need not bind us here. There is no reason why evidence of usage should not be admissible to show that, in the building trade, weekly accounts are not rendered of all the work done, but of such portion only of the work as to which it is the practice of the trade to render such accounts. The cases to which I drew Mr. Lush's attention; the earlier cases in which it was held that goods stowed on deck might be shown by parol evidence not to be covered by a policy on goods generally (1); are immediately in point and applicable. Those cases have never been questioned since the first publication of Park on Insurance, and have been cited in all the subsequent text-books on that subject. Yet the policies there in question were in general terms, and but for the evidence of usage could not have received a restricted and limited signification. There is no sound reason why, just as, in those cases, evidence was admitted to show that by the goods intended to be insured were meant such goods only as were loaded in the ordinary stowage of the vessel, so, here, the general terms of the *contract which we are called. upon to construe, may not receive a limited application by evidence of the general understanding amongst all persons in the trade to which the contract relates. I am therefore of opinion that such evidence was properly admitted by the arbitrator, and that no ground exists for disturbing the award. (WIGHTMAN, J. was absent.) HILL, J.: 66 I am entirely of the same opinion. The question turns upon the meaning to be given, in the contract, to the words "a weekly account of the work done thereunder." Mr. Lush says that the plain ordinary meaning of these words is a weekly account of all the work done thereunder." The usage of the trade is proved to be that they mean "a weekly account of the day work done thereunder." We have to determine whether evidence of that usage was rightly received. Now the rule governing the admissibility of evidence to explain the language of contracts is, that words relating to the transactions of common life are to be taken in their plain, ordinary and popular meaning; but if a contract be made with reference to a subject-matter as to which particular words and expressions have by usage acquired a peculiar meaning different from their plain ordinary sense, the (1) See p. 714, ante. MYERS v. SARL. [ *318] |