discussed in the preceding section. The second exception is based on policy.

Aside from these exceptional cases, it will be true that in written as in oral contracts, language is to be given the meaning which the one using it apprehended or should have apprehended that the other party would give to it. 16 Pollock indeed says that "every question which can arise on the interpretation of a contract may be brought as the last resort under this general form." " But the meaning of a written promise is not necessarily what the promisor supposes or has any reason to suppose the promisee will attach to the words. The promisor's justifiable suppositions are not the standard which the law seeks to apply, but are the basis of one of the secondary rules of interpretation applicable only when the meaning of the writing is ambiguous under the standard which the law adopts. 18 If the promisor's justifiable belief were the standard

16 Ardis v. Grand Rapids &c. Ry. Co., 200 Mich. 400, 167 N. W. 5; McMillin v. Titus, 222 Pa. 500, 502, 72 Atl. 240,

17 Wald's Pollock on Contracts (3d ed.), page 308, and there is judicial support for his statement. "In all deeds and instruments the language used by one party is to be construed in the sense in which it would be reasonably understood by the other." Blackburn, J., in Fowkes u. Manchester, etc., Assoc., 3 B. & S. 917.

18 In Inman Mfg. Co. v. Cereal Co., 133 Iowa, 71, 73, 110 N. W. 287, 8 L. R. A. (N. S.) 1140, McClain, J., said: "The theory contended for by the appellee on the trial, and accepted by the trial court, was that it was competent to establish these facts under the provision of Code, section 4617, that: 'When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.' The first recognition of any such proposition as a specific rule of evidence, so far as we have been able

to discover it, is in Potter v. Ontario & L. Mut. Ins. Co. (1843), 5 Hill, 147, where Judge Bronson of the New York Supreme Court quotes it in the following language from Dr. Paley without specific reference: 'Where the terms of a promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it. . . . The rule next appears as the first portion of section 1697 of the Code of Civil Procedure of New York, as recommended for adoption in the final and complete report of the commissioners on practice and pleading of that State made in 1849. The Legislature of that State had previously adopted a Code of Civil Procedure reported by the same commissioners (appointed in 1847) which is generally known as the 'New York Code of Civil Procedure of 1848' (see Hepburn, Development of Code Pleading, 83); but in their final report of 1849 (drafted by Mr. David Dudley Field, one of their number), they added Part IV, of Evidence, which had not been covered by the Code as previously

which the law adopted it would be applicable to every case. That it is not is evident from the two exceptional cases above mentioned. In each of those cases a meaning will be given to

C

the writing irrespective of the justifiable belief which the promisor has of the promisee's understanding. In the first case the promisor justifiably supposes that the promisee attaches the same meaning to the writing that he himself does. The promisee, however, with equal reason attaches another meaning to the words. The court will construe the writing and give the meaning to it which under the circumstances the court conceives the language ought locally to bear. This meaning conceivably may be different from that which either party justifiably attached to the words. 19

The second case involves the question whether in a written contract the parties have absolute freedom to attach a special meaning to their words wholly different from that which the words ordinarily bear in the place and under the circumstances

tation of plain and unambiguous language of a written instrument in accordance with any other meaning than that indicated by the words used in the instrument. The rule is thus limited in 2 Parsons, Contracts (9th Ed.), 498." See also Comptograph Co. v. Burroughs Adding Machine Co., 179 Ia. 83, 159 N. W. 465, 473, and cases infra, § 610.

19 In Preston v. Luck, 27 Ch. D. 497, the parties entered into an agreement with reference to certain patents. The plaintiff contended that the agreement included both English and foreign patents. The defendant understood that he was contracting to sell the English patents only. Kay, J., held that a contract means consensus ad idem and that the plaintiff must fail even in regard to the English patents. This decision was reversed. Cotton, L. J., in the Court of Appeal said: "Now, where parties enter into a written contract, what they have agreed to must depend on the construction of that contract.

It is very true that in some cases, if the party against whom specific performance is sought to be obtained, satisfies the Court by clear evidence that what he on the terms of the contract appears

to have contracted for was not in his mind the thing in respect of which he was bargaining, the Court will refuse specific performance, but that is only because in cases of specific performance the Court does not grant that special equitable relief if it finds, for any reason, that it would be what is called a hardship or unreasonable to compel the defendant specifically to perform the contract."

"The mere fact that they put an erroneous construction on a contract in writing existing between them and the Defendant Luck, and insisted that it included what it does not in fact include, is, in my opinion, no ground for saying that there is no contract." It is submitted that if there were three sets of patents, English, French and American, and one party supposed the English and French were included, and the other supposed the English and American were included, but the Court believed that the proper construction of the language at the time and place that the contract was made, was that the French and American were included, there would be a contract to that effect. See also infra, § 610.

where the contract was made; and it seems pretty clear that they have not. 20 The ultimate standard then in contracts of which a memorial has been made is the proper local meaning under the surrounding circumstances, of the words or symbols agreed upon by the parties. This test may be applied without exception.

§ 608. The local standard is preferable to the normal standard.

Though the obligation of a contractor depends upon his expressed, not his actual intention, it is desirable that as little violence shall be done to his actual intention as is consistent with two things:

1. Fairness to the co-contractor who may have been justified in assuming an intention different from that which actually existed.

2. A reasonable certainty of proof of the terms of the contract.

It is the second requisite which is here in question. Is certainty of proof too much impaired by enforcing the contract according to a local standard, when, if the normal standard were applied, a different meaning would be obtained? The early law seems generally to have forbidden the application of a local or particular standard under these circumstances.21 But a reasonable degree of certainty is attained if words are construed according to a standard not peculiar to the parties, but customary among persons of their kind under the existing circumstances. The certainty obtained by enforcing always the normal standard would be but little greater, and would be obtained at the expense of a rigidity which would frequently do violence to the actual intention of

See infra, § 611.

"In Wing v. Earle, 1 Cro. Eliz. 267, Gawdy, J., said: Twenty acres should be calculated when referred to in an obligation "according to the law, and not according to the custom of the country." In Master, etc., of St. Cross Hospital v. Walden, 6 T. R. 338, it appeared that a bushel by statute contained 8 gallons, but a local measure

contained 9 gallons. The court held that a local lease reserving rent in "quarters," must be construed as referring to the statutory bushel, for when a word had a legal meaning its legal meaning must be understood. See also Bradley v. Steampacket Co., 13 Pet. 89, 105, and modern cases to the same effect may be found,

the parties. That the local standard would be applied unless at any rate under the normal standard the words were extremely clear seems to have been early settled. Even though the local standard led to a construction opposed to the literal meaning of the language this was true.22

Perhaps in case of deeds of conveyance, or of negotiable instruments, which are relied upon not simply by the parties to them, but by others, the normal rather than the local standard may be defensible, but not in ordinary contracts; and the prevailing tendency at the present day is to enforce the local meaning though contrary to an apparently clear normal meaning. "Neither, in the construction of a contract among merchants, tradesmen, or others, will the evidence [of a local usage] be excluded because the words are in their ordinary meaning unambiguous; for the principle of admission is that words perfectly unambiguous in their ordinary meaning are used by the contractors in a different sense from that." 23

22 Hewet v. Painter, 1 Bulstr. 174, 175 (9 Jac. 1), "As touching construction of words, they shall be taken according to the Common parlance, phrase and custom of speech where the words are spoken. 27 H. 8. fo. 27. b. the meaning and intent of parties is to be observed, and to this purpose Fitzherbert there puts the case, that if two do make a contract for 18 Barrels of Ale for a certain some of money, and he which bought the Barrels of Ale would have had into his bargain the Barrels also, when the Ale was spent; but it was adjudged that he should not have the Barrels, for that the common usage was, that the vendor should have the Barrels again, and the intent of the parties never was that the vendee should have the Barrels, but only the Ale."

"And this intention and construction of words shall be taken, according to the vulgar and usual sense, phrase and manner of speech of these words, and of that place where the words are spoken, as the case before remembered,

of straining of a Mare taken for distrayning."

23 Brown v. Byrne, 3 E. & B. 703. So in Myers v. Sarl, 3 E. & E. 306, Blackburn, J., said: "I do not think that it is necessary, in order to render such evidence admissible, that there should be any ambiguity on the face of the phrase which has to be construed.

.. I take to be the true rule of law upon the subject that when it is shown that a term or phrase in a written contract bears a peculiar meaning in the trade or business to which the instrument relates, that meaning is prima facie to be attributed to it; unless upon the construction of the whole contract enough appears, either from express words or by necessary implication, to show that the parties did not intend that meaning to prevail. The consequence is that every individual case must be decided on its own grounds." In the well known case of Smith v. Wilson, 3 B. & Ad. 728, in an action on a covenant in a lease to "leave in the warren ten thousand rabbits," proof was allowed that the customary mean