ognition of a purely mutual standard, and in defending this standard as that which should be applied, he says: 44 "Chief Justice Tindal, in his apprehensions that under any other rule 'no lawyer would be safe in advising upon the construction of a written instrument, nor any party in taking under it,' 45 apparently assumes that under the traditional rule an ideal facility and certainty of interpretation can be had." No such assumption, however, is necessary in order to lead one to prefer a narrower standard than that of the understanding of the parties themselves. By the narrower standard, a facility and certainty of interpretation is obtained, which though not ideal is so much greater than is obtainable under the view favored by Wigmore as to be more than an adequate compensation for the slight restriction put upon the power to grant and contract according to words defined merely by a mutual standard. The principle is often expressed in the statement that direct evidence of intention is inadmissible. But the rule is not one of evidence but of substantive law. If actual intention were of legal importance, there is no reason why evidence of the intention should not be admitted. That the rule is one of substantive law and not of evidence is clear from the fact that an admission by both parties to a contract that they meant something different from what the contract states when interpreted according to the standard adopted by the law, is ineffectual to change the meaning of the writing.46 An admission he does not understand, whether that language is French or shorthand abbreviations, should inform himself as to the meaning of the language, and will be bound by the proper meaning thereof if there is a proper meaning, if he fails to make the necessary inquiry. In the Indiana decision the court seemed to assume that the abbreviations in question had no meaning in the absence of a mutual understanding between the parties, and further that the abbreviations if interpreted as claimed contradicted clear language in the bill of lading in question. 44 Wigmore on Evidence, § 2462. 45 Attorney General v. Shore, 11 Sim. 592, 631. 46 Therefore a plea setting up a different intent from that which the writing expresses is demurrable. Langley v. Owens, 52 Fla. 302, 42 So. 457. See also cases cited infra, § 623, to the effect that the construction put by the acts of the parties themselves upon a contract will not change the construction of it if that is unambiguous. The acts of the parties are an admission of their understanding, and these decisions necessarily hold such an admission relates to an immaterial fact. is a waiver of proof, and if a fact is of legal importance, it may always be established by waiver of proof. Since in this case the waiver is ineffectual, the inference is plain that the actual intention of the parties is of no legal consequence. § 613. Meaning peculiar to the parties may be given to words if the words appropriately express that meaning. If words are used by the parties in a special sense even though this meaning is not fully defined, it may be shown provided the words actually used are appropriate under the local standard to express that sense. "John Smith" in a writing means a particular John Smith whom the parties intended. "Blackacre" means a particular Blackacre. The names used are accurate designations, not simply according to the individual standard but under either the local or normal standard. The infirmity of language which uses the same symbol for different things, alone creates a difficulty. The user of the symbol may properly say "this is no special convention of mine, the symbol I use is the normal and proper one to express my meaning, therefore it is the symbol of that meaning. It is sometimes supposed that this principle is confined to proper names, 47 but this seems erroneous. An "advertising chart" may be both as accurate and as ambiguous a term as "John Smith." A "business card" may similarly mean one of several cards; and there seems no more reason for requiring one who uses the term "business card" when dealing with another who understands what business card he refers to, to define by further description the particular business card he has in mind than to make the same requirement of one who uses the words "John Smith," "Blackacre," or "Peerless." 48 47 The Theory of Legal Interpretation by O. W. Holmes, 12 Harv. L. Rev. 417, 418. 48 In Stoopes v. Smith, 100 Mass. 63, 97 Am. Dec. 76, 1 Am. Rep. 85, the defendant contracted for the insertion of his business ard in 200 copies of the plaintiff's "advertising chart." On being sued for the agreed price, the defendant offered to prove that the advertising chart meant a chart of cloth to be publicly posted near Worcester and that no such chart had been made and posted. The evidence was held admissible, Wells, J., saying: "The purpose of all such evidence is, to ascertain in what sense the parties themselves used the ambiguous terms in the writing which set forth their contract. If the previous negotiations make it manifest in what sense they understood and used those terms, they furnish the It is often said that direct evidence of intention is admissible in case of equivocation, and most of the illustrations put in this section would be regarded as illustrations of this principle. best definition to be applied in the interpretation of the contract itself. The effect must be limited to definition of the terms used, and identification of the subject-matter. If so limited, it makes no difference that the language of the nego iations relates to the future, and consists in positive engagements on the part of the other party to the contract. Their effect depends, not upon their promissory obligation, but upon the aid they afford in the interpretation of the contract in suit. They are not the less effective for the purposes of explanation and definition because they purport to carry the force of obligation. The contract in suit may illustrate this principle in a point that is not in dispute. The defendant agrees to pay fifty dollars 'for inserting business card,' etc. In applying this stipulation, if the defendant had a business card distinctly known and recognized as such, there would be no difficulty in giving effect to the contract. But the identification of that card would involve the whole principle of admitting parol evidence for the interpretation and application of written contracts to the subject-matter. It could be done only by the aid of parol testimony. Suppose he had several business cards, differing in form and contents, but one was selected and agreed upon for the purpose at the time the contract was signed; or that one had been prepared specially for the purpose. Clearly parol testimony would be competent to identify the card so selected or prepared, and to prove that the parties assented to and adopted it as the card to which the contract would apply. Suppose, thirdly, that no such card had been selected or prepared, but its form, contents and style had been described verbally and assented to, and the plaintiff had agreed to insert it as so described. Such evidence may be resorted to, not for the promise it contains, but for the aid it affords in fixing the meaning and applying the general language of the written contract. The same conditions render the evidence offered by the defendant competent for similar purposes. The term 'his advertising chart' requires to be practically applied. The representations of the plaintiff are in the nature of a description of the vehicle by which the publication of the business card was to be effected; and his account of the disposition he proposed to make of the charts was a description of the extent and the sense in which it was to be an 'advertising chart.'” In Ganson v. Madigan, 15 Wis. 144, 153-4, the court said: "If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. Such declarations, if satisfactorily established, would seem to be stronger and more conclusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circumstantial." Accordingly, in that case, the action of the circuit court in admitting evidence by the defendant of the meaning put upon the words "a good team," in a contract containing a warranty that a certain machine should be capable with one man and a good team "of cutting and raking off twelve to twenty acres of grain a day," was sustained. The court But it should be observed that it is not primarily the intention of the parties which the court is seeking, but the meaning of the words at the time and place when they were used. The fact that the parties intended their words to bear a certain meaning, would be immaterial were it not for the fact that the words either normally or locally might properly bear such meaning," and this is the basis of the rule in regard to equivocation. § 614. Technical meaning is sometimes given to language in violation of apparent intention. The early lawyers dreamed of "a lawyer's paradise where all words have a fixed precisely ascertained meaning, and where if the writer has been careful, a lawyer having a document referred to him may sit in his chair, inspect the text and answer questions without raising his eyes." 50 Though little is left of this dream at the present day, there are some technical words and phrases that have acquired so definite a meaning in the law that it would be difficult to induce a court to give a contrary construction to the words especially in a formal instrument, though from the whole document and from the surrounding circumstances it was highly improbable that the parties attached to the words their technical signification. The continued: "The word 'team,' as used in the contract, is of doubtful signification. It may mean horses, mules, or oxen, and two, four, six or even more of either kind of beasts. And yet we know very well that the parties had some definite purpose in using the word. The trouble is not that the word is insensible, and has no settled meaning, but that it at the same time admits of several interpretations, according to the subject-matter in contemplation at the time. It is an uncertainty arising from the indefinite and equivocal meaning of the word, when an interpretation is attempted without the aid of surrounding circumstances." It was earnestly insisted it meant any team that was necessary to pull the machine, whereas the proof admitted showed the reference was to a team of two horses only. This case was cited and quoted from with approval in Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 68, 84 S. W. 76. See also Newhall v. Appleton, 114 N. Y. 140, 21 N. E. 105, 3 L. R. A. 859, where a particular meaning was given to the word "order." 49 Thus the mere fact that a note sued on was ambiguous as to the capacity in which defendants signed did not render admissible their testimony as to their undisclosed intentions in signing. Planters' Chemical & Oil Co. v. Stearnes, 189 Ala. 503, 66 So. 699. 50 Quoted from Thayer's Preliminary Treatise on Evidence, in 4 Wigmore, Evidence, § 2462. rule in Shelley's case when applied must often have been recognized as violating the natural sense of a deed.51 So in insurance policies, conditions by repeated construction of the court acquire a definite meaning which it would be difficult if not impossible to overthrow in a particular case, however clearly extrinsic evidence might show that the parties attached another meaning to their words and one which, as an original question, they might reasonably bear. Especially in Marine Insurance policies this is true. Early decisions and customs established the meaning of the forms then in use, and "Since those decisions, and the recognition of those customs, merchants and underwriters have for many years continued to enter into policies in the same form. According to ordinary principle, then, the later policies must be held to have been entered into upon the basis of those decisions and customs. If so, the rules determined by those decisions and customs are part of the contract." 52 It is obvious that this presumption that parties know the technical legal meaning of the language which they use, and thereupon adopt that meaning may often be very artificial; 53 and it is a reasonable expectation and in accordance with the tendencies of the law, that the disposition of courts will be to give language less and less frequently an artificial meaning at variance with the apparent intention of the parties. 54 "See Broom, Legal Maxims (8th Eng. ed.), 426 et seq., for this and other cases of artificial meanings given to special words in wills. It must be supposed that the same construction would be given to the same words in settlements inter vivos or in contracts to make such settlements or wills. Lohre v. Aitchison, 3 Q. B. D. 558, 562. See infra, §§ 618, 650. "In Utica City Nat. Bank v. Gunn, 222 N. Y. 204, 118 N. E. 607, 608, the court said: "The proper legal meaning, however, is not always the meaning of the parties. Surrounding circumstances may stamp upon a contract a popular or looser meaning. . . . To take the primary or strict meaning is to make the whole transaction futile. To take the secondary or looser meaning is to give it efficacy and purpose. In such a situation, the genesis and aim of the transaction may rightly guide our choice." See also Mill Wood & Coal Co. v. Flint River Cypress Co., 16 Ga. App. 636, 85 S. E. 943; Hill v. Philo, 155 N. Y. S. 922. The common judicial attitude is shown by the language of the court in Propper v. Colson, 86 N. J. Eq. 399, 99 Atl. 385, 386. "The present case does not involve the meaning of words in a conversation between laymen, but of words used in a formal written instrument, the purpose of which is to express the mutual rights and obligations of the parties to it. In construing such in |