14 Q. B., p. 891; Pollock vs. Stacy, 9 id., p. 1033; 1644. The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed. NOTE.-"Popular sense."-Story Cont., Sec. 647; Code La., 1941; see Casler vs. Conn. Mut. Ins. Co., 22 N. Y., p. 427. "Rather than strict legal meaning." See Schenck vs. Campbell, 11 Abb Pr., p. 292; Schuylkill Nav. Co. vs. Moore, 2 Whart., p. 491. To the contrary see Rawlinson vs. Clarke, 14 M. & W., p. 187. "Insolvency," even in a State which has an insolvent law, has been construed to mean simple inability to pay debts, and not technical insolvency under the statute. Biddlecombe vs. Bond, 4 Ad. & El., p. 332; Parker vs. Gossage, 2 Cr. M. & R., p. 617. "Usage."-Smith vs. Wilson, 3 B. & Ad., p. 728; see Hinton vs. Locke, 5 Hill, p. 437; Astor vs. Union Ins. Co., 7 Cow., p. 202; Miller vs. Tetherington, 6 H. & N., p. 278; Cuthbert vs. Cumming, 11 Exch., p. 405; affirming 10 id., p. 809; Coit vs. Corn Ins. Co., 7 Johns., p. 385; Clife vs. Schwabe, 3 C. B., p. 469; see Jenny Lind Co. vs. Bower, 11 Cal., p. 195; see note to Sec. 1638, ante, and Code of Civil Procedure, Secs. 1861 and 1870, Subd. 12. Words to be under stood in usual sense. Technical words. Law of place. Contracting parties have the power to define the words which they use in the contract, and if the agreed definitions are free from ambiguity the contract will be enforced according to the definition thus assigned.Morrison vs. Wilson, 30 Cal., p. 344. And it will be presumed, nothing to the contrary appearing, that the same meaning was intended wherever the like words are subsequently used.-Saunders vs. Clark, 29 Cal., p. 299. The grammatical construction is not always to be followed.-Hancock vs. Watson, 18 Cal., p. 137. 1645. Technical words are to be interpreted as usually understood by persons in the profession or business to which they relate, unless clearly used in a different sense. NOTE.-Code La., 1942; Dana vs. Fiedler, 12 N. Y., p. 40. This is another, and probably a better form of the maxim, that "technical words are to be taken in their technical sense."-See Worthington vs. Gimson, 2 El. & El., p. 618; 6 Jur. (N. S.), p. 1053. A contrary intention will, however, prevail.-Taylor vs. Caldwell, 3 Best & Sm., p. 832; James vs. Plant, 4 Ad. & El., p. 749; see Doe d. Hickman vs. Haslewood, 6 id., p. 167; Jenny Lind Co. vs. Bower, 11 Cal., p. 195; see Reynolds vs. Jourdon, 5 Cal., p. 108; see Morrison vs. Wilson, 30 Cal., p. 344. 1646. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made. NOTE. "Law of the place where it is to be performed." Story Confl. Laws, Secs. 270, 280; Everett vs. Vendryes, 19 N. Y., p. 436; Curtis vs. Leavitt, 15 id., p. 9; Bowen vs. Newell, 13 id., p. 290; Jacks vs. Nichols, 5 id., p. 178; Cutler vs. Wright, 22 id., p. 480. "Where it is made."-Story Confl. Laws, Sec. 282; Thompson vs. Ketcham, 8 Johns., p. 189; Pomeroy vs. Ainsworth, 22 Barb., p. 118, 130; Curtis vs. Leavitt, 15 N. Y., p. 9; Gibbs vs. Fremont, 9 Exch., p. 25; Jenny Lind Co. vs. Bower, 11 Cal., p. 195; note to Sec. 1638. 1647. A contract may be explained by reference to the circumstances under which it was made, and Contracts the matter to which it relates. NOTE." Circumstances under which it was made." Westcott vs. Thompson, 18 N. Y., p. 363; Blossom vs. Griffin, 13 id., p. 569; Moore vs. Meacham, 10 id., p. 207; Doolittle vs. Southworth, 3 Barb., p. 79; Hasbrook vs. Paddock, 1 id., p. 635; Turner vs. Evans, 2 El. & Bl., p. 512; see Schenck vs. Campbell, 11 Abb. Pr., p. 292; McNeil vs. Shirley, 33 Cal., p. 202; Brannan vs. Mesick, 10 Cal., p. 95; Hancock vs. Watson, 18 Cal., p. 137; note to Sec. 1639 and cases cited therein. "Matter to which it relates."-Peacock vs. N. Y. Life Ins. Co., 20 N. Y., pp. 293, 296; French vs. Carhart, 1 id., p. 96; Rex vs. Mashiter, 6 Ad. & El., p. 153; 1 Nev. & P., p. 326. explained by circumstances. restricted 1648. However broad may be the terms of a con- Contract tract, it extends only to those things concerning which to its it appears that the parties intended to contract. NOTE.-Code La., 1954; Code Napoleon, 1163; see Platt vs. Lott, 17 N. Y., p. 478; Lyall vs. Edwards, 6 H. & N., p. 337; Jackson vs. Stackhouse, 1 Cow., p. 122; Rich vs. Lord, 18 Pick., p. 325; Simons vs. Johnson, 3 B. & Ad., p. 175; Payler vs. Homersham, 4 M. & Selw., p. 423; see Sec. 1639 and note. evident object. Interpresense in tation in which 1649. If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of promisor making it, that the promisee understood it. NOTE. A promise is interpreted in that sense in which the promisor knew the promisee understood it. Accordingly, where the vendor of land promised to execute such a conveyance as he had received from his grantor, which he said was a warranty deed—the same in fact containing only a covenant against the acts of the grantor-the purchaser, although he saw the deed under which the vendor held, understood it to be, and understood the vendor to promise a deed with a general warranty, and the vendor knew that such was his understanding; held, that the vendor was bound to convey with general warranty.-Barlow vs. Scott, 24 N. Y., p. 40; see Mowatt vs. Londesborough, 3 El. & Bl., p. 307, per Campbell, C. J.; Wheelton vs. Hardisty, 8 id., p. believed promisee to rely. When the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended, at the time that the promisee received it. It is not the sense in which the promisor actually intended it that always governs the interpretation of an equivocal promise, because at that rate you might excite expectations which you never meant, nor would be obliged to gratify. Much less is it in the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements which you never designed to make. It must, therefore, be the sense (for there is no other remaining) in which the promisor believed the promisee accepted his promise. This will not differ from the actual intention of the promisor, when the promise is given without collusion or reserve; but we put the rule in the close form, to exclude evasion in cases in which the popular meaning of a phrase and the strict grammatical construction of the words differ; or, in general, wherever the promisor attempts to make his escape through some ambiguity in the expressions which he used. "Temures promised the garrison of Sebastia that if they would surrender no blood should be shed. The garrison surrendered and Temures buried them all alive. Now, Temures fulfilled the promise in one sense, and in the same, too, in which he intended it at the time, but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it; which last sense, according to our rule, was the sense in which he was in conscience bound to have performed it. From the principal 'that * * the obligation of a promisor is to be measured by the expectation which the promisor anyhow voluntarily and knowingly excites, results a rule which governs the construction of all contracts, and is capable, from its simplicity, of being applied with great care and certainty, viz.: that whatever is expected by one side and known to be so expected by the other, is to be deemed a part or condition of the contract."-Paley's Moral Philosophy, pp. 85, 97; see Code of Civil Procedure, Sec. 1864. Particular clauses of a contract are subor ordinate to dinate to its general intent. general intent. NOTE. Decker vs. Furniss, 14 N. Y., p. 615; Kelley vs. Upton, 5 Duer, p. 340; London Gaslight Co. vs. Chelsea, 8 C. B. (N. S.), p. 215; see Ringer vs. Cann, partly partly 1651. Where a contract is partly written and Contract, partly printed, or where part of it is written or printed written and under the special directions of the parties, and with a printed. special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded. NOTE.-"Written parts control the printed parts." Harper vs. N. Y. City Ins. Co., 22 N. Y., p. 444; Harper vs. Albany Ins. Co., 17 id., p. 198; Woodruff vs. Coml. Mut. Ins. Co., 2 Hilt., p. 122; see People vs. Saxton, 22 N. Y., p. 309. "The parts which are original control those which are copied from a form." This is the real principle of the foregoing decisions. Printing is only evidence that the contract was partly formal and partly original. cies, how 1652. Repugnancy in a contract must be recon- Repugnanciled, if possible, by such an interpretation as will give reconciled. some effect to the repugnant clauses, subordinate to the general intent and purpose of the whole contract. NOTE. "Giving some effect to repugnant clauses." |