PART I. bond or covenant under seal, and whether the evidence be or be not consistent with the terms of the contract, is illegal in its matter or purpose upon any of those grounds which render an agreement void by reason of illegality (≈). SECT. III.-CONSTRUCTION OF CONTRACTS IN WRITING. Construction of written contracts belongs to the court-contracts PAGE 142 General rules of construction :-according to ordinary meaning.. 145 146 General words restricted by particular application-restricted to 148 Construction in favour of validity 149 Construction of words against the party using them—exceptions 149 Constructive covenants and contracts-covenants in leases-in 151 Covenants implied in law-covenants implied under the Convey- 154 The construction of written contracts belongs to the court. The rules and principles of the construction or interpretation of written contracts are the same in all courts, whether administering law or equity; though the doubtful construction of a contract may be a sufficient ground for refusing special equitable remedies and leaving the parties to their strict legal rights (a). They are also the same for all written contracts, whether contained in an instrument under seal, or in a simple agreement in writing (b) ; nor is there any difference of construction for mercantile contracts, and those made for any other purpose, further than that the words may have a special mercantile or technical meaning (c).—“ The construction of a contract in writing, as of all written instruments, belongs to the court alone, whose duty it is to construe all such instruments as soon as the true meaning of the words in (z) Collins v. Blantern, 2 Wil. 341; 1 Smith, L. C. 355; see post, Pt. III., Chap. IV. (a) Chelmsford, L. C., Scott v. Corp. Liverpool, 3 D. & J. 334; 28 L. J. C. 235. (6) Ellenborough, C. J., Seddon v. Senate, 13 East, 74. (c) Jessel, M. R., Southwell v. Bowditch, 1 C. P. D. 376; 45 L. J. C. P. 630. CH. IV. SECT. III. which they are couched and the surrounding circumstances, if any, have been ascertained as facts; and it is the duty of the 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, when those words or circumstances are necessarily referred to them" (d). The same rule applies to foreign contracts; the construction of which is for the court, after taking evidence of the translation and meaning of the words, and of the foreign law and rules of construction (e). Where a written document has been lost and secondary evidence is given of its contents, it is still the province of the court, and not of a jury, to decide upon the evidence of its contents (f). Also where the contract is contained in several letters or writings connected together, the construction on the whole is for the court (g).-But where a contract is contained Contract partly in only partly in writing, and partly in parol evidence, it becomes a writing. question of fact which may be submitted to a jury upon the whole matter what are the terms of the contract (). The consent of a party to a written contract may in general be given by parol, and whether the consent so given is absolute or conditional is a question of fact upon the evidence (i). But if the consent be given in a letter or writing, the construction is for the court; and whether it be absolute or conditional is a question of construction only (k). The parties in consenting to a written agreement contract to be bound by the construction which a court of law shall put upon the instrument (7). printed and written. Printed forms are used for some contracts, as policies of insurance, Contract charterparties and bills of lading, because the greater part of the partly language of them is invariable and uniform, and has acquired by partly use a known and definite meaning, so that it can be applied on all similar occasions by merely adding the particulars in writing; and it is generally true that there is no difference in the importance of words merely because they are printed or written. "The words superadded in writing are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to PART I. have a greater effect attributed to them than to the printed words; inasmuch as the written words are the immediate language and words selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions" (m). Hence words which are obviously left in the printed form by negligence, and which are inconsistent with the words entered in writing, may be rejected (»). The filling up of blanks in a printed form with lines is presumptively done only to prevent them being filled up with words, and not to cancel the whole passage (o). In a bill of lading the printed words "weight contents and value unknown" were held to be consistent with a precise statement of the weight in writing; being construed as meaning merely that the party signing did not intend to be bound by the statement of weight (p). Where a bill of exchange was drawn for a sum written in words in the body of the bill and a larger sum noted in figures in the margin, the bill being stamped for the larger sum, it was construed as a bill for the written sum only, and the ambiguity being patent, evidence was not admitted to explain it (7). -If the document is partly written or altered with a material capable of obliteration, as lead pencil, a preliminary question may arise, whether the part capable of obliteration is intended to remain part of the document, or merely as matter for further deliberation (»). Words deleted and initialed form no part of the contract, and Punctuation. cannot be read for the purpose of construing it (s).—In deeds and other legal documents, also in Acts of Parliament, it is not usual to insert stops or marks of punctuation; and the court must read them with such stops as will give effect to the intention appearing upon the whole instrument (f). If, however, stops, or capital or italic letters, or inverted commas, or any significative marks are introduced, they must be allowed their proper effect in construing the instrument (u). (m) Per cur. Robertson v. French, 4 East, 136 Blackburn, J., Joyce v. Realm Ins. Co., L. R. 7 Q. B. 583; 41 L. J. Q. B. 356; Coleridge, C. J., Magee v. Lavell, L. R. 9 C. P. 113; 43 L. J. C. P. 131; Glynn v. Margetson, (1893) A. C. 351 62 L. J. Q. B. 466. (n) Dudgeon v. Pembroke, 2 Ap. Ca. 284; 46 L. J. Ex. 409. (0) Gumm v. Tyrie, 6 B. & S. 298; 33 L. J. Q. B. 97. (p) Jessel v. Bath, L. R. 2 Ex. 267; 36 L. J. Ex. 149. (9) Saunderson v. Piper, 5 Bing. N. C. 425. (r) Francis v. Grover, 5 Hare, 39; 18 L. J. C. 329; Lucas v. James, 7 Hare, 410; I. g. Adams, L. R. 2 P. & D. 367 ; 41 L. J. P. 31. (s) Inglis v. Buttery, 3 Ap. Ca. 552. (t) Kenyon, C. J., Doe v. Martin, 4 T. R. 65. (u) See Gauntlett v. Carter, 17 Beav. 586; 23 L. J. C. 219. CH. IV. SECT. III. according to Some rules and maxims are laid down in general terms for the construction of written contracts :-The leading rule of construction is that "the grammatical and ordinary sense of the words is Construction to be adhered to, unless that would lead to some absurdity, or some ordinary meaning. repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but no further "(x). The words used are presumptively to be understood in their plain ordinary and popular meaning; technical words used in technical subjects are to be understood in their proper technical meaning; and mercantile terms used in mercantile contracts are to be understood in their ordinary mercantile meaning (y). And such meaning must be applied, though it may in fact not be the meaning contemplated by the parties at the time of making the contract; unless a different meaning can be drawn from other parts of the contract ().-Accordingly a contract for the supply of goods terminable on the "insolvency" of the buyer, was construed according to the ordinary meaning of insolvency, that is, an inability in fact to pay debts; and not the technical meaning of insolvency by statute (a). A covenant in a separation deed that the wife should not "associate" with a named person was construed literally to include all intercourse whatsoever, and not to be restricted to criminal intercourse (b). A contract stipulating against carrying on a business "in London," was construed in the proper literal meaning of "The City of London"; there being nothing in the context, or in the usage of the business, requiring a different meaning (c). A warranty in an insurance against "iron" cargo was construed in the ordinary generic meaning of “iron,” as including steel (d). Upon the same principle, a proviso for re-entry in a lease expressed to take effect upon breach of any of the covenants "hereinafter contained," was construed literally as applicable only to covenants following the proviso, though there were not any such in the lease, and not to preceding (r) Ld. Wensleydale, Grey v. Pearson, 6 H. L. C. 61; 26 L. J. C. 481; 10 E. R. 1216; Ld. Blackburn, Caledonian Ry. v. North British Ry., 6 Ap. Ca. 131. (y) Per cur. Robertson v. French, 4 East, 135; Mallan v. May, 13 M. & W. 517; 13 L. J. Ex. 48; Holt v. Collyer, 16 C. D. 718; 50 L. J. C. 311. See ante, p. 133. (2) Westbury, L. C., G. W. Ry, v. L. Rous, L. R. 4 H. L. 659. (a) Parker v. Gossage, 2 C. M. & R. (b) Dormer v. Knight, 1 Taunt. 417. (d) Hart v. Standard Ins., 22 Q. B. D. L PART I. Construction according to general intention. CONTRACTS IN WRITING. covenants (e). A lease expressed to be determinable in seven or fourteen years, "if the parties should so think fit," was construed literally as determinable only by the consent of both parties (ƒ). And a deed of assignment of a debtor's business upon trust to carry on and sell the business, and to divide the profits and proceeds of sale amongst all the creditors in proportion to the amount of their debts, was construed, according to the natural meaning of the language, not to admit of any resulting trust for the debtor in respect of a surplus produced by the profits and sale over the amount of the debts in full (g).-By the same rule, upon a question arising as to the meaning of the word "or" in a contract, it is to be construed in its ordinary and proper sense, as a disjunctive particle; unless the context or the facts to which the contract is applied require it to be construed as a conjunctive particle equivalent to "and"; or as merely identifying the connected terms (). A concurrent leading rule of construction, which may sometimes operate exceptionally to the former, is that the particular words of the contract are to be construed with reference to the intention drawn from whole; as expressed in the maxim, "verba intentioni debent inservire" (i). "It ought to receive that construction which its language will admit of, and which will best effectuate the intention of the parties, to be collected from the whole of the agreement; and greater regard is to be had to the clear intention of the parties than to any particular words which they may have used in the expression of their intent" (k).—According to this restricted by rule covenants, releases and other operative parts of deeds are to be construed with reference to the recitals of the object and intention, unless the words used admit of no doubt as to the operation (). "If the recitals are clear and the operative part is ambiguous, the recitals govern the construction. If the recitals are ambiguous and the operative part is clear, the operative part must prevail. If both the recitals and the operative part are Operative words recitals. (e) Doe v. Godwin, 4 M. & S. 265. (f) Fowell v. Tranter, 3 H. & C. 458; 34 L. J. Ex. 6. (g) Smith v. Cooke, (1891) A. C. 297; 60 L. J. C. 607. (h) Bold v. Rayner, 1 M. & W. 343; Elliott v. Turner, 2 C. B. 446; see Tielens v. Hooper, 5 Ex. 833. (i) Willes, C. J., Parkhurst v. Smith, Willes, 332; Ellenborough, C. J., Barton v. Fitzgerald, 15 East, 541; Sicklemore v. Thistleton, 6 M. & S. 12. (k) Per cur. Ford v. Beech, 11 Q. B. 866; 17 L. J. Q. B. 114. (1) Walsh v. Trevanion, 15 Q. B. 733; 19 L. J. Q. B. 458. |