§ 609. Clear and unambiguous words.

240

Though the expressions in the cases are numerous that where language used in a contract is clear and unambiguous, there is no opportunity for interpretation or construction, 24 yet these expressions themselves need interpretation. As has been seen, in a strict sense, every contract needs interpretation; and,2 therefore, the expressions in question are literally inexact; moreover, if the local standard is adopted, contracts apparently clear in their meaning may be shown by usage or the surrounding circumstances to be ambiguous or perhaps clearly to mean something different from the normal or ordinary meaning of their language.25 There are, however, certain secondary rules for the interpretation or construction of a contract, the meaning of which is doubtful after the primary means which are always available to aid the court in applying the standard accepted by

ing of thousand as applied to rabbits in that vicinity was one hundred dozen, and Coleridge, J., said: Evidence will not be excluded because the words are in their ordinary meaning unambiguous." In Grant v. Maddox, 15 M. & W. 737, years was interpreted as meaning the period of the year less a long vacation. In Mitchell v. Henry, 15 Ch. D. 181, the words "white selvage" were interpreted as covering a dark gray border on a piece of goods, on proof that such was the trade name.

In Walls v. Bailey, 49 N. Y. 464, Folger, J., said: "The meaning of words may be controlled and varied by usage, even when they are words of numbers, length or space, usually the most definite in language." See also Nelson v. Ohio Cultivator Co., 188 Fed. 620, 623, 112 C. C. A. 394; Leavitt v. Kennicott, 157 Ill. 235, 41 N. E. 737; Lexington & Big Sandy R. Co. v. Moore, 140 Ky. 514, 517, 131 S. W.257; Commonwealth v. Hobbs, 140 Mass. 443, 5 N. E. 158 (arsenic colored with lamp black was held under the evidence to be "white arsenic"); Brown v. Doyle, 69 Minn. 543, 72 N. W. 814; Farnum v. Concord Horse R. Co., 66

N. H. 569, 29 Atl. 541; Hinton v. Locke, 5 Hill, 437 (proof was allowed that a "day" meant ten hours); Reed v. Tacoma B. & S. Association, 2 Wash. 198, 26 Pac. 252, 26 Am. St. Rep. 851 ("west" in a deed, was interpreted as meaning a little north of west on proof that government surveys were thus designated). See also § 650. Cf. cases cited in the followingsection.

24 See, e. g., E. H. Stanton Co. v. Rochester &c. Agency, 206 Fed. 978; Birmingham Waterworks Co. v. Windham, 190 Ala. 634, 67 So. 424; Commons v. Snow, 194 Ill. App. 569; Cottrell v. Michigan United Traction Co., 184 Mich. 221, 150 N. W. 857; Quirk v. Rich, 40 Mont. 552, 107 Pac. 821; Gans v. Aetna L. Ins. Co., 214 N. Y. 326, 108 N. E. 443, L. R. A. 1915 F. 703; Mecca Realty Co. v. Kellogg's Corn Flakes Co., 151 N. Y. S. 750; Finger v. Goode, 169 N. C. 72, 85 S. E. 137; Harney v. Wirtz, 30 N. Dak. 292, 152 N. W. 803; Tacoma Mill Co. v. Northern Pac. R. Co., 89 Wash. 187, 154 Pac. 173; Griffin v. Fairmount Coal Co., 59 W. Va. 480, 53 S. E. 24.

240 Supra, § 601.

25 See supra, § 608, infra, §§ 618, 650.

the law (whether that is the local or the normal standard) have been used.26 Such is the rule that language is construed most strongly against him who uses it, or that where written words are in conflict with printed words, the former prevail. That these rules cannot come into play where it is clear from the primary sources of information what the contract means under the standard which the law adopts, is perfectly true. It is probable that nothing more than this is meant in most cases where the possibility of interpretation is denied if the contract is clear and unambiguous. In some cases, however, it is plain that an assertion is intended that where language is clear according to the normal standard, not only a mutual standard cannot be applied, 27 but that a local standard also is inadmissible. 28 The accuracy of such statements cannot be ad

26 See infra, §§ 619 et seq. 27 See the next two sections. 28 In Braney v. Millbury, 167 Mass. 16, 17, 44 N. E. 1060, the court said: "The price to be paid was a round sum for building the road, culvert, and drain, and in the specifications under the division 'Road' there is a reference to the excavation of the 'material,' without anything to indicate that the rights or obligations of the parties under the contract were to be affected by the kinds of material which might be found in the excavation. We are of opinion that the contract calls for the construction of the road without reference to the question whether there is stone or rock in small or large quantities in the portion to be excavated. The only part of the contract that furnishes any ground for an argument to the contrary is the word 'earth' used in stating generally the subjectmatter of the contract. The evidence of the experts, offered to show that the words 'earth excavation' as used in the contract did not mean 'rock excavation,' and that it is the custom of the trade in such cases for the contractor to receive extra compensation for such rock excavation as it is necessary to make in the execution of the

contract when there is no specific agreement therein concerning the matter, was rightly excluded."

In Kentucky Wagon Mfg. Co. v. People's Supply Co., 77 S. Car. 92, 57 S. E. 676, 122 Am. St. Rep. 540, in an action for damages alleged to have been sustained by the plaintiff because of the defendant's failure to keep certain property "fully insured" the defendant denied a breach of the promise and alleged that "fully insured" in insurance contracts meant a policy which provided that in case of loss the Insurance Company would be liable for only three-fourths of the actual value of the property in view of the custom of insurance companies to treat that proportion as the full insurable value. The court said: "Conceding it was the usual practice of insurance companies in general to write policies containing the 3-4 clause, such practice could not be shown for the purpose of contradicting words in agreements entered into between third parties, which are free from ambiguity or equivocation; and in their ordinary and usual acceptation have but one meaning, as in the case under consideration. This would infringe upon the well settled doctrine that parol testi

mitted, 29 but the cases where they are made may generally be readily supported on the ground that even if the proffered evidence were considered, the meaning of the contract clearly still remained the meaning apparent from the normal meaning of the words when unexplained by extrinsic evidence. It may be added also that though language apparently clear may sometimes be shown by the surrounding circumstances to mean something different from what is apparent, yet as has been well said, 30"We must recognize, not only that there is a critical breaking point, as it were, beyond which no language can be forced, but that in approaching that limit the strain increases."

§ 610. The intent of the parties, where the contract is written, is ineffective unless expressed in the writing.

The mental intent of parties to a contract may be inadequately expressed in two kinds of cases which it is important to differentiate in discussing interpretation.

1. There may be an intent which is (wholly unexpressed whatever standard of interpretation be adopted. It is not only possible but common for a party to fail to express by the language he uses what he intends to express. He would himself admit this if the deficiency in his language were pointed out to him. A lawyer who has attempted to draw a complicated trust or contract, knows how easy it is to omit to provide for one of many possible contingencies which he intends to cover.

2. The intent may be inadequately expressed, but the language of the writing though not naturally bearing the sense intended by the one who used it if the words are taken individually, whether they are interpreted according to the normal standard, or even according to the local standard, nevertheless indicates the intent by the general tenor and purpose of the contract if taken in connection with surrounding circumstances. Cases which fall under these two headings doubtless shade into one another. Nevertheless the distinction is a real one, and it may be said without qualification that if the parties have made a memorial of their bargain, or a writing is required by law, their

mony is inadmissible for the purpose of contradicting the terms of a written instrument."

29 See infra, § 629.

30 Eustis Mining Co. v. Beer, 239 Fed. 976, 982, by L. Hand, J.

automatic feed attachments which were not within the terms of the patent and were not protected by it." In Canterberry v. Miller, 76 Ill. 355, 357, the court said: "These papers, offered in evidence as a contract, do not appear to be an agreement between two or more parties. The one signed by appellant, Canterberry, reads that he has bought of himself 100 head of hogs, for which he agrees to pay himself $4.50 per hundred. The one executed by Appellee, Miller, reads that he has sold to himself 100 head of hogs, for which he agrees to pay $4.50 per hundred.

actual intent unless expressed in some way in the writing is ineffective, except when it can be made the basis for reformation of the writing.31 It is true that it is commonly said that the court in the interpretation of contracts is endeavoring to find the intention of the parties. The natural meaning of this language is that the court is endeavoring to find as a controlling factor what, as has just been seen, may be wholly ineffectual. In contracts of which no memorial is made and no writing required by law, it is doubtless true that where parties have made a bargain which both of them understand in a certain sense, their intent (which at least has been made plain to one another) 31 Eyre, C. B., in Gibson v. Minet, 1 H. Bl. 569, 615: "All latitude of construction must submit to this restriction-namely, that the words may bear the sense which by construction is put upon them." So the court said in Vinton Petroleum Co. v. Sun Co., 230 Fed. 105, 107, 144 C. C. A. 403, "To adopt the construction contended for on behalf of the appellant would require giving to the agreement a meaning not expressed by the language used. This is not permissible." See also expressiones in Bank of New Zealand v. Simpson, [1900] A. C. 182, 189; Bijur Motor Lighting Co. v. Eclipse Mach. Co., 243 Fed. 600, 156 C. C. A. 298; Miller v. New York L. Ins. Co., 179 Ky. 246, 200 S. W. 482; Old Colony St. Ry. Co. v. Brockton, etc., St. Ry. Co., 218 Mass. 84, 105 N. E. 866; Woburn Nat. Bank v. Woods, 77 N. H. 172, 89 Atl. 491; Griffith v. Adair, 74 W. Va. 646, 82 S. E. 749. In Strong v. Carver, 197 Mass. 53, 83 N. E. 328, 14 L. R. A. (N. S.) 274, the court said: "In an action to recover royalties under a contract in writing granting the defendant a license to manufacture and sell 'automatic feed attachments' under a certain patent, which by the plain meaning of its words covers only the manufacture and sale of attachments for which the patent was granted, it cannot be shown by oral evidence that the contract was intended to include

"The language used in these instruments is clear and pointed, no ambiguity exists, and it is clearly expressed as words can do it, that appellant buys of himself, and that appellee sells to himself a certain number of hogs, and we are aware of no rule of construction by which we can hold this to be a contract wherein appellant sells and appellee buys a certain quantity of hogs.

"It is no part of the duty of courts to make contracts for parties, and we are aware of no manner in which these instruments can be held to be a contract between appellant and appellee, unless the court should make a radical alteration in the terms of the two instruments." See also Benjamin v. McConnell, 4 Gilm. 536, 46 Am. Dec. 474.

must be sought, however inadequately it may have been expressed. But in contracts of the other class, this is not true, and though courts say they are seeking the intention of the parties, the assertion is even more emphatic that this intention can be found only in the expressions of the parties in the writing. In effect, therefore, it is not the real intent but the intent expressed or apparent in the writing which is sought.32