Even though the question concerns merely the normal meaning of a word as found in dictionaries, it is still a question of fact, if the word fact is used in a literal sense. But as Professor Thayer has said: 65

"The judges have always answered a multitude of questions of ultimate fact, of fact which forms part of the issue. It is true that this is often disguised by calling them questions of law." The reason for this seems to have been a distrust of the jury's ability to answer questions of fact that call for nice discrimination and an educated mind. The construction of written documents has largely been withdrawn from the jury in this way. The general rule is that construction of a writing is for the court.66 Where, however, the meaning of a writing is uncertain or ambiguous, and parol evidence is introduced in aid of its interpretation, the question of its meaning should be left to the jury.67 It is obvious that if the contention

* Lyle v. Richards, L. R. 1 H. L. 222, 241; Hamilton v. Insurance Company, 136 U. S. 242, 255, 10 S. Ct. 945, 34 L. Ed. 419; Storm v. Montgomery, 79 Ark. 172, 85 S. W. 149; Illinois Cent. R. Co. v. Foulks, 191 Ill. 57, 60 N. E. 890; Zeigler v. Illinois T. & S. Bank, 245 Ill. 180, 91 N. E. 1041, 28 L. R. A. (N. S.) 1112; Lexington & B. S. Ry. Co. v. Moore, 140 Ky. 514, 131 S. W. 257; Waldstein v. Dooskin, 220 Mass. 232, 107 N. E. 927; Klemik v. Henricksen Jewelry Co., 128 Minn. 490, 151 N. W. 203; Peru Plow & I. Co. v. Johnson, 86 Neb. 428, 125 N. W. 595; Grueber Engineering Co. v. Waldron, 71 N. J. Law, 597, 60 Atl. 386; Smith v. United Tract, etc., Co., 168 N. Y. 597, 61 N. E. 1134; Marshall v. Sackett & Wilhelms Co., 166 N. Y. App. Div. 141, 151 N. Y. S. 1045; Brown v. Davidson, 42 Okl. 598, 142 Pac. 387; Veitch v. Jenkins, 107 Va. 68, 57 S. E. 574; Southern Flour & Grain Co. v. McGeehan, 144 Wis. 130, 128 N. W. 879.

"Simpson v. Margitson, 11 Q. B. 23;

Hutchison v. Bowker, 5 M. & W. 535; Goddard v. Foster, 17 Wallace, 123, 21 L. Ed. 589; Luse v. Martin, 215 Fed. 28, 131 C. C. A. 336; Wilkes v. Stacy, 113 Ark. 556, 169 S. W. 796; Holland v. Long, 57 Ga. 36; McAvoy v. Long, 13 Ill. 147; Smith v. Faulkner, 12 Gray, 251; Paine v. Ringold, 43 Mich. 341, 5 N. W. 421; Blocher v. Mayer Bros. Co., 127 Minn. 241, 149 N. W. 285; Newberry v. Durand, 87 Mo. App. 290; Fruin v. Crystal R. Co., 89 Mo. 397, 14 S. W. 557; Rosenthal v. Ogden, 50 Neb. 218, 69 N. W. 779; Philadelphia v. Stewart, 201 Pa. 526, 51 Atl. 348; Blaisdell v. Davis, 72 Vt. 295, 48 Atl. 14; Carstens v. Earles, 26 Wash. 676, 67 Pac. 404; Kieburtz v. Seattle, 84 Wash. 196, 146 Pac. 400. In Morrell v. Frith, 3 M. & W. 402, Lord Abinger, C. B., said: "One case in which the effect of a written document must be left to a jury is, where it requires parol evidence to explain it, as in the ordinary case of mercantile contracts, in which peculiar terms and abbreviations are employed." The use of the word "sell" in the memoranda of the initiatory part of a contract, the result

heretofore made is sound that the circumstances surrounding the formation of a contract are always admissible in evidence, a division cannot be drawn between cases where parol evidence is admissible and cases where it is not. The distinction must rather be taken between cases where the surrounding circumstances do not tend to show that the words of the contract had a special local meaning, and cases where such a special local meaning is possible in view of the evidence introduced. The jury's function in the construction of documents then will arise wherever, in view of the surrounding circumstances and usages offered in evidence, the meaning of the writing is not so clear as to preclude doubt by a reasonable man of its meaning. If the meaning after taking the parol evidence, if any, into account, is so clear that no reasonable man could reach more than one conclusion as to the meaning of the writing under the circumstances, the court will properly decide the question of fact for itself as it may any question of fact which is equally clear. Also if such uncertainty or ambiguity as there may be in a writing does not arise from, and cannot be solved by, any special local meaning of the words used, or any usage or surrounding circumstances, the court will deal with the matter itself, as the difficulty of construction must be solved from the writing alone. Even though a contract is oral, if the exact words used by the parties are not in dispute, the court will deal with the matter in the same way as if the contract was written.68 A fortiori if a written contract has been destroyed or lost, the court will construe the meaning of the contract after proof has been given of the destruction or loss of the contents of the writing.6

69

§ 617. Methods of determining the local meaning of a writing. The inquiry of a court which has before it a writing demanding interpretation should be then.-What was the meaning of the writing at the time and place it was made between per

of several conferences and conversations, has been held not conclusive, as matter of law, as to the nature of the contract."

68 Morrell v. Frith, 3 M. & W. 402; Globe Works v. Wright, 106 Mass.

207; Rogers v. Colt, 21 N. J. L. 704; Elliott v. Wanamaker, 155 Pa. 67, 25 Atl. 826.

69 Berwick v. Horsfall, 4 C. B. (N. S.) 450; Wellman v. Jones, 124 Ala. 580. 27 So. 416.

sons of the kind or class who were parties to it? The rules laid down to aid the court in this inquiry are all subordinate to this main object. The general intent so far as it is manifested is more important than particular words.70 "In general, in questions depending on the construction of contracts, cases are of little value; for all agreed that the construction is to be according to the intention appearing by the words: and the words rarely are the same." "1 Rules of interpretation, so far as they have value, are based on the natural and logical processes of determining the meaning of language according to the standard adopted by the law.72 Such rules may be divided into two classes, primary and secondary. The primary rules are those which are always applicable, whether the writing seems clear or ambiguous. The secondary rules are those which are applicable only where after the primary rules or principles have been applied, the local meaning of the writing is still uncertain or ambiguous. The same rules are applicable to informal parol agreements, but, as has been seen,73 the standard there sought to be applied is slightly different. Though there are different rules of substantive law as to the effect of sealed and unsealed written contracts, and as to their variation by parol after they have been entered into, the rules of interpreting them at the present day are the same.74 courts of law and equity have no different rules for determining the meaning of a contract.75

"Erickson v. United States, 107 Fed. 204; Field v. Leiter, 118 Ill. 17, 26, 6 N. E. 877; Gibbs v. People's Nat. Bank, 198 Ill. 307, 312, 64 N. E. 1060; Kennedy . Kennedy, 150 Ind. 636, 50 N. E. 756; United Boxboard, etc., Co. *. McEwan Bros. Co. (N. J. Eq.), 76 Atl. 550, 553; Bristol v. Bostwick,. 139 Tenn. 304, 202 S. W. 61; Collins #. Lavelle, 44 Vt. 230.

71 Lord Blackburn in Calcutta, etc., Steam Navigation Co. v. DeMattos, 32 L. J. (N. S.) 332, 330.

"Hoffman v. Eastern Wisconsin, etc., Light Co., 134 Wis. 603, 115 N. W. 383.

"See supra, § 605.

"Dwy v. Connecticut Co., 89 Conn.

So

74, 92 Atl. 883, L. R. A. 1915 E. 800; Kane v. Hood, 13 Pick. 281. In Robertson v. French, 4 East, 130, 134, Lord Ellenborough said: "The same rule of construction which applies to all other instruments applies equally to this instrument of a policy of insurance." Cf. Doe v. Benson, 4 B. & Ald. 588, where the court held that in a parol lease "Lady Day" might be shown by usage to mean old "Lady Day" not the day then fixed by statute, but approved of an earlier case which held the contrary, because the lease there was by deed and "evidence is not admissible to explain a deed." 75 Jersey City v. Flynn, 74 N. J. Eq. 104, 70 Atl. 497.

§ 618. Primary rules of interpretation.

1. The common or normal meaning of language will be given to the words of a contract unless the circumstances show that in a particular case a special meaning should be attached to it. Ordinary language may bear locally an extraordinary meaning in some circumstances, but in the vast majority of cases it does not.76 2. Technical terms or words of art will be given their technical meaning," unless the context or local usage shows a contrary intention,78 and under this principle mercantile terms in mercantile contracts will be given the meaning which merchants ordinarily give them.79 This rule,

however, will yield if the application of other primary rules show a contrary meaning. Thus, if the circumstances or context show that a technical word was not used in its proper technical sense, another meaning may be given it.80 So an ordinary word may from the context (or surrounding circumstances) be given an unusual meaning.81 3. The writing will be read as a whole, and every part will be construed with reference to the whole; and if possible it will be so construed as to give effect to its general purpose.82 The context and subject-matter of a contract may show that in a particular sentence an ordinary word has an unusual meaning; 83 or that