§ 624. Secondary rules: Conflict between prior and subsequent clauses.

It was early laid down "That, in a deed, if there be two clauses so totally repugnant to each other, that they cannot stand together, the first shall be received, and the latter rejected. "23 The same doctrine has been held in some modern cases applicable to contracts generally.24 It is obvious, however, that such a rule is extremely artificial, and can only be accepted as a last resort. In most recent cases where it has been applied the later clause was inconsistent with the general purpose of the contract, and for this reason alone might have been disregarded. If, however, the first clause is general in terms, and the latter is particular, 25 or if the latter clause is repugnant only to part of the earlier, it seems that the latter clause would be given full effect, and the earlier subjected to such qualifications as the latter might make necessary.26 The true rule seems to be as stated in a recent Maine decision: 27

"When one intention appears in one clause in an instrument, and a different, conflicting intention appears in another clause in the same instrument, that intention should be given effect which appears in the principal or more important clause."

§ 625. Secondary rules: Guaranties.

A contract binding a surety, it has been held, should if pos

23 2 Bl. Comm. 381.

24 Employers' Liability Assur. Corporation v. Morrill, 143 Fed. 750, 74 C. C. A. 640; Henne v. Summers, 16 Cal. App. 67, 71, 116 Pac. 86; Jones v. Pennsylvania Casualty Co., 140 N. C. 262, 52 S. E. 578; Straus v. Wanamaker, 175 Pa. 213, 226, 34 Atl. 648; Smith v. Clinkscales, 102 S. Car. 227, 85 S. E. 1064; Dustin v. Interstate &c. Assoc., 37 S. Dak. 635, 159 N. W. 395, L. R. A. 1917 B. 319; Bean v. Ætna Life Ins. Co., 111 Tenn. 186, 78 S. W. 104; Wisconsin, etc., Ins. Co. v. Wilkin, 95 Wis. 111, 118, 69 N. W. 354, 60 Am. St. Rep. 86.

25 English v. Shelby, 116 Ark. 212, 172 S. W. 817.

26 In Williams v. Hathaway, 6 Ch. D. 545, 549, Jessel, M. R., said: "It is said that if you find a personal covenant, followed by a proviso that the covenantor shall not be personally liable under the covenant, the proviso is repugnant and void. I agree that this is the law; but that by no means applies to a case where the proviso limits the personal liability under the covenant without destroying it, thus leaving a portion of the original covenant remaining; in that case the proviso is perfectly valid. There is no authority against that view."

27 Union Water Power Co. v. Lewiston, 101 Me. 564, 65 Atl. 67.

sible be construed in his favor. 28 But there seems little propriety in such a rule and it is opposed to a number of decisions.29 Certainly if such a rule exists, it must be confined to cases of sureties for accommodation. A guaranty given for the business advantage of the guarantor, and written by him instead of being construed in his favor indeed comes within the rule so often applied to insurance policies, "that the words of the writer of the contract shall be taken most strongly against him." 30 This has been so held frequently in recent years in regard to the contracts of surety companies.31 The question whether slight variations of risk shall discharge a surety from liability under his contract is often confused with questions

* Nicholson v. Paget, 1 C. & M. 48. See also Mellville v. Hayden, 3 B. & A. 593; Bell v. Bruen, 1 How. 169, 11 L Ed. 89; Sterling v. Wolf, 163 Ill. 467, 45 N. E. 218; Jewel Tea Co. v. Shepard, 172 Ia. 480, 154 N. W. 755; Ryan v. Williams, 29 Kans. 487, 497; State v. Dayton, 101 Md. 598, 61 Atl. 624. Numerous other decisions say that the surety's contract should be "strictly" construed.

"Lawrence v. McCalmont, 2 How. 426, 450, 11 L. Ed. 326; Weinreich Est. Co. v. A. J. Johnston Co., 28 Cal. App. 144, 151 Pac. 667 (under Cal. C. C., § 2837); Gamble v. Cuneo, 21 N. Y. App. Div. 413, 47 N. Y. S. 548, affd., 162 N. Y. 634, 57 N. E. 110; United States Rubber Co. v. Silverstein, 161 N. Y. S. 369; Daly v. Old, 35 Utah, 74, 83, 99 Pac. 460; Noyes v. Nichols, 28 Vt. 159, 173.

In Hargreave v. Smee, 6 Bing. 244, 248, Tindal, C. J., said: "The words employed are the words of the Defendant in this cause, and there is no reason for putting on a guaranty a construction different from that which the Court puts on any other instrument. With regard to other instruments the rule is, that if the party executing them leaves anything ambiguous in his expressions, such ambiguity must

be taken most strongly against him." To the same effect is Drummond v. Prestman, 12 Wheat. 515, 6 L. Ed. 712; United States Rubber Co. v. Silverstein, 161 N. Y. S. 369.

31 American Surety Co. v. Pauly, 170 U. S. 133, 42 L. Ed. 977, 18 S. Ct. 552; Tebbets v. Mercantile &c. Co., 73 Fed. 95, 38 U. S. App. 431, 19 C. C. A. 281; Topeka v. Federal Union Surety Co., 213 Fed. 958, 130 C. C. A. 364; Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422, 181 S. W. 279, 1200; New Haven v. Eastern Paving Brick Co., 78 Conn. 689, 702, 63 Atl. 517; Van Buren County v. American Surety Co., 137 Ia. 490, 115 N. W. 24, 126 Am. St. Rep. 290; Streator Clay Mfg. Co. v. Henning Vineyard Co., 176 Ia. 297, 155 N. W. 1001; Hormel v. American Bonding Co., 112 Minn. 288, 128 N. W. 12, 33 L. R. A. (N. S.) 513, and note; Rule v. Anderson, 160 Mo. App. 347, 142 S. W. 358; Farmers' Bank v. Ogden, 192 Mo. App. 243, 182 S. W. 501; Bank of Tarboro v. Fidelity &c. Co., 128 N. C. 366, 38 S. E. 908; Cowles v. United States Fidelity &c. Co., 32 Wash. 120, 72 Pac. 1032; United American &c. Co. v. American Bonding Co., 146 Wis. 573, 131 N. W. 904, 40 L. R. A. (N. S.) 661.

of the interpretation of his promise, but should be considered separately.32

§ 626. Secondary rules: Contracts affecting a public interest. Grants of franchises and contracts affecting the public interest are to be construed liberally in favor of the public.33 It will be observed that this rule is based on a different reason from ordinary rules of interpretation. There is no reason to suppose that the parties in fact intended to favor the public, and when a court so assumes, it does so because it is for the public interest so to assume. If interpretation and construction are to be distinguished, this rule as well as that favoring sureties (if such a rule exists) is a rule of construction.

§ 627. Latent and patent ambiguities.

Lord Bacon divided ambiguities in written instruments into latent and patent ambiguities. Those which are not apparent on the face of the instrument are latent; and, according to Lord Bacon, may be explained by pleading and parol proof. But patent ambiguities, Lord Bacon says, cannot be helped by averment "because the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment which is of inferior account in law." 34 This rule has been applied to written contracts.35 But it is chiefly in regard to wills that the maxim has given trouble. Certainly so far as contracts are concerned, it may be wholly disregarded. It was

32 See infra, §§ 1222 et seq.

33 Joy v. St. Louis, 138 U. S. 1, 34 L. Ed. 843, 11 S. Ct. 243, citing, Parker v. Great Western R. Co., 7 Scott, N. R. 835, 870; Colman v. Eastern Counties Ry. Co., 10 Beav. 1, 14; Southbridge Canal Co. v. Wheeley 1, 14; Stourbridge Canal Co. V. Wheeley, 2 Barn. & Ad. 792; Blakemore v. Glamorganshire Canal Nav. Co., 1 Myl. & K. 154, 165; Lee v. Milner, 2 Younge & C. (Exch.), 611, 618; Ware v. Regents Canal Co., 28 L. J. (N. S.) Ch. 153, 157; Gray v. Liver

pool & B. R. Co., 4 Ry. & C. Cas. 235, 240. See also Washington-Oregon Corp. v. Chehalis, 202 Fed. 591; Ex parte Russell, 163 Cal. 668, 126 Pac. 875, Ann. Cas. 1914 A. 152; People v. Detroit United R. Co., 162 Mich. 460, 125 N. W. 700, 127 N. W. 748, 139 Am. St. Rep. 582.

34 Bacon's Maxims, Rule 23.

35 Hollier v. Eyre, 9 C. & F. 1; Romine v. Hoag (Mo.), 178 S. W. 147; Douglas v. Morrisville, 89 Vt. 393, 95 Atl. 810.

always and still is as Professor Thayer has said, 36. "an unprofitable subtlety." 37

§ 628. Interpretation of several connected writings.

Where a writing refers to another document, that other document, or so much of it as is referred to in it, is to be construed as part of the writing.38 How far the requirements of the Statute of Frauds when that statute is applicable affect this principle has previously been considered. 39 Even where a writing does not refer to another writing, if such other writing was made as part of the same transaction, the two should be construed together.40 It is usually said that the two writings

* Piedmont, etc., Co. v. Motor Co. (Ala.), 12 So. 768; Gray v. Cotton, 166 Cal. 130, 134 Pac. 1145; Chicago, etc., Bank v. Chicago, etc., Trust Co., 190 Ill. 404, 60 N. E. 586; Levin v. Strempler, 194 Ill. App. 299; White v. McLaren, 151 Mass. 553, 24 N. E. 911; W. T. Tilden Co. v. Densten Hair Co., 216 Mass. 323, 103 N. E. 916; Grieb v. Cole, 60 Mich. 397, 27 N. W. 579, 1 Am. St. Rep. 533; Patrick v. Y. M. C. A., 120 Mich. 185, 79 N. W. 208; Watson v. O'Neil, 14 Mont. 197, 35 Pac. 1064; McGeragle v. Broemel, 53 N. J. L. 59, 20 Atl. 857; Hicks v. British America Assurance Co., 162 N. Y. 284, 56 N. E. 743, 48 L. R. A. 424; Philadelphia v. Jewell's Estate, 135 Pa. 329, 19 Atl. 947, 20 Atl. 281; Stewart v. Morris, 84 S. C. 148, 65 S. E. 1044; Houghton v. Hoy, 102 Wash. 358, 172 Pac. 1148.

*See supra, § 581.

"In re Phoenix Bessemer Steel Co., 44 L. J. Ch. 683; Joy v. St. Louis, 138 U. S. 1, 34 L. Ed. 843, 11 S. Ct. 243; Philippi Collieries Co. v. Thompson, 163 Fed. 23, 89 C. C. A. 501; Prichard t. Miller, 86 Ala. 500, 5 So. 784; Flinn . Mowry, 131 Cal. 481, 63 Pac. 724,

1006; Getz v. Federal Salt Co., 147 Cal. 115, 81 Pac. 416, 109 Am. St. Rep. 114; Gibbs v. Wallace, 58 Colo. 364, 147 Pac. 686; Beach's Appeal, 58 Conn. 464, 20 Atl. 475; Sherman's Sons Co. v. Industrial & Mfg. Co., 82 Conn. 479, 74 Atl. 773; Hunter v. Clarke, 184 Ill. 158, 56 N. E. 297, 75 Am. St. Rep. 160; Illinois Match Co. v. Chicago, etc., R. Co., 250 Ill. 396, 95 N. E. 492; Leach v. Rains, 149 Ind. 152, 48 N. E. 858; Kurt v. Lanyon, 72 Kans. 60, 82 Pac. 459; Smith v. Theobald, 86 Ky. 141, 5 S. W. 394; Macpherson v. Bacon's Ex., 180 Ky. 773, 203 S. W. 744; American Gas, etc., Co. v. Wood, 90 Me. 516, 38 Atl. 548, 43 L. R. A. 449; Washburn, etc., Mfg. Co. v. Salisbury, 152 Mass. 346, 25 N. E. 724; Sutton v. Beckwith, 68 Mich. 303, 36 N. W. 79, 13 Am. St. Rep. 344; Cutler v. Spens, 191 Mich. 603, 158 N. W. 224; Myrick v. Purcell, 95 Minn. 133, 103 N. W. 902; American Poster Co. v. Cammack, 139 Minn. 372, 166 N. W. 501; Jennings v. Todd, 118 Mo. 296, 24 S. W. 148, 40 Am. St. Rep. 373; Talbott v. Heinze, 25 Mont. 4, 63 Pac. 624; Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966, 55 Am. St. Rep. 653; Jacobs v. Mitchell, 46 Ohio St. 601, 22 N. E. 768; Maffett v. Thompson, 32 Ore. 546, 52 Pac. 565, 53 Pac. 854; Beekman v. Beekman, 86 Wis.

together form one contract. Though this is generally true, it is not always accurate, even though the several writings are part of the same bargain. Where one of the writings is a formal document it cannot be incorporated in an ordinary writing. A note and a mortgage to secure it are not strictly one contract, though doubtless each is to be construed in connection with the other in order to determine its meaning. 42 It seems further that a contemporaneous writing known to the parties may shed light on the construction of a contract without being

655, 659, 57 N. W. 1117. Cf. the statement in Ingersoll-Rand Co. v. United States F. & G. Co., 92 N. J. L. 403, 105 Atl. 236.

"The rule is that unsigned specifications, not contained in the contract nor in terms made a part thereof by the contract itself, but referred to therein and annexed thereto, must be construed therewith. North Bergen Board of Education v. Jaeger, 67 N. J. L. 39, 50 Atl. 583; Monmouth Park Ass'n. v. Warren, 55 N. J. L. 598, 27 Atl. 932; McGeragle v. Broemel, 53 N. J. L. 59, 20 Atl. 857.

But it is also the rule that, where the specifications are referred to for a specific purpose only, they become a part of the contract for such purpose only, and should be treated as irrelevant for all other purposes. Short v. Van Dyke, 50 Minn. 286, 52 N. W. 643; Harvey v. Radkey, 1 White & W. Civ. Cas. Ct. App. 276; Noyes v. Butler, 98 Minn. 448, 108 N. W. 839; Guerini Stone Co. v. P. J. Carlin Constr. Co., 240 U. S. 264, 36 S. Ct. 300, 60 L. Ed. 636; White v. McLaren, 151 Mass. 553, 24 N. E. 911; Moreing u. Weber, 3 Cal. App. 14, 84 Pac. 220; Cruthers v. Donahoe, 85 Conn. 629, 84 Atl. 322, Ann. Cas. 1913 C. 221; Hayes v. Wagner, 113 Ill. App. 229, aff'd 220 Ill. 256, 77 N. E. 211."

41 Part only of another writing may be incorporated in a contract. Guerini Stone Co. v. P. J. Carlin Const. Co.,

240 U. S. 264, 36 S. Ct. 300, 60 L. Ed. 636.

42 Even where the whole bargain is in one document, a similar difficulty may arise. In Biery v. Haines, 5 Whart. 563, 566, Kennedy, J., said:"And if it be so, that Lucas Haines originally executed the instrument upon which the plaintiff founds his claim by setting his name and affixing his seal to it; and that John Shaffer and Adam Haines, at the same time, set their names merely thereto, declining to affix their seals: then it may be that Lucas Haines would be liable upon it, as his specialty, to the plaintiff in a separate action brought against him; and that John Shaffer and Adams Haines would be liable upon it as their notes of hand to the plaintiff, either jointly or severally in actions brought against them. In the body of the instrument it is true that the three promise jointly as well as severally, to pay, yet I apprehend that although according to the rules of law it cannot take effect as a joint obligation upon the three, still in order that it may avail, and be a security to the plaintiff, according to the main design of the parties for the payment of the money therein mentioned, rather than be considered altogether inoperative it ought to be regarded as the separate obligation of Lucas Haines, and as the joint and several promissory note of John Shaffer and Adam Haines to pay the money." 2 Bl. Com. 379; Co. Litt. 42, 2 b.