Joint and Several Rights and Obligations. Here there is a joint promise of all and a separate promise of each, making one more promise than there are obligors. "We jointly and severally promise" or "we and each of us promise" clearly indicate that the obligation is joint and several. By statute in some States, all joint obligations are made both joint and several. The doctrine of survivorship of joint obligations does not apply and suit may be brought against each obligor separately or all jointly. Joint and several promisees are obviously impossible.

CHAPTER VIII

INTERPRETATION OF CONTRACT

We have to consider here, (1) rules which are applied in proving the existence and terms of a contract in litigation, and (2) rules which are applied by the courts in learning the meaning of the contract when its terms have been proved.

§ 112. Proof of the Contract. The terms of a contract may be expressed either wholly orally, or partly orally and partly in writing, or wholly in writing, or by a sealed instrument. Where the contract is wholly oral and not required to be in writing, it is only necessary to prove what the parties said and that they intended to contract. Neither party will then be allowed to say that he did not intend what he said. If the contract is partly oral and partly in writing, no oral evidence is permissible to contradict the terms so far as reduced to writing. If the agreement is under seal, it is the agreement itself and not merely evidence of the agreement as in all other cases. Therefore, proof of the execution of a sealed instrument is all that is necessary. Where the contract is wholly in writing but not under seal, oral evidence is not admissible to vary, alter, or add to the written instrument. Here again, as in oral contracts, neither party can say the terms of the agreement do not express his intention. When the jury has found the terms used by the parties, it is then for the court to say whether such terms constitute a contract.

Oral evidence is only admissible in the case of written contracts for three purposes:

(1) To prove the existence of the document which is the

agreement or evidences it.

(2) To prove that there is a contract in law and in fact, and (3) To prove the terms of the agreement.

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§ 113. Proof of Document. In the case of contracts under seal, it was necessary at common law to call an attesting witness to prove it, or to prove his signature if dead. Now it is generally sufficient to prove the signatures of the parties. Where the contract is in writing it is, of course, necessary to orally prove the signatures of the parties, except that in some States such proof is unnecessary unless the execution of the instrument has been denied under oath. If the contract is evidenced by several writings which do not refer to each other, oral testimony may establish their connection except where the contract is one required by the statute to be in writing. So, also, where acceptance of a written offer is by an act or by word of mouth, oral evidence will be necessary to prove that the contract was concluded on the terms stated in the written offer.

§ 114. Proof That There Is a Contract in Law and in Fact. When the document purporting to be an agreement or part of an agreement is before the court, it is always open to a party to show by oral testimony that there is not a valid agreement, because of the lack of some essential element of a contract such as consideration or capacity of parties or some other element. Such evidence shows there is no contract, and, therefore, does not conflict with the rule against varying or contradicting the terms of a written agreement by oral testimony. "The distinction in point of law is that evidence to vary the terms of an agreement in writing is not admissible, but evidence to show that there is not an agreement at all is admissible." And the same rule permits oral testimony to show that there is a condition precedent to the operativeness of the contract, as, for example, where the party sued signed upon condition that the instrument should not be delivered or be in effect until something else was done.2

§ 115. Proof of Terms of Agreement. Because of the rule that parol evidence is not admissible to add to or vary

1 Earl, J., in Pym v. Campbell, 6 E. & B. 370, 374.

2 Biederman v. O'Connor, 117 Ill. 493, 7 N. E. 463.

the terms of a written agreement, it follows that the admission of oral testimony as to the terms of the written agreement is very limited.

Oral testimony is admissible to show supplementary terms where the whole agreement is not in writing. Thus, where the written agreement specifies no time of performance, oral evidence as to the terms of the agreement on that point is admissible.3 And in the same way oral evidence as to a collateral agreement which does not contradict the tenor of the written part of the agreement is admissible. Oral testimony is also admissible to explain the terms of a written contract. Thus, it may be necessary to identify the parties to the contract, as where two persons have the same name, or to show that one party really contracted on behalf of another as his principal, or to identify the subject matter.

Oral testimony may also be necessary to explain some clause or word in the agreement describing the amount and character of the responsibility which one of the parties assumes. Under this rule oral evidence is admissible to show the application of the phrases used to the subject matter where a vessel is warranted "seaworthy" or a house promised to be kept in "tenantable" repair or a thing undertaken to be done in a "reasonable" manner. These are what are known as latent ambiguities. Oral evidence is not admissible to explain a patent ambiguity as where a bill of exchange was drawn for "two hundred pounds" but the figures at the top were "245". In an Illinois case a testator devised certain land to "the four boys", and it was held that parol evidence was admissible to show that of his seven sons three were adults living in their own homes and four were minors living with the deceased and were "the four boys" meant.5

Oral evidence is also admissible to show usages and customs of the trade and the special meaning which the

3 Horner v. Horner, 145 Pa. 258, 23 Atl. 441.

4 Anson on Contracts (11th ed.), 327.

Bradley v. Rees, 113 Ill. 327, 55 Am. Rep. 422.

parties thus gave to the terms used. Merchants and traders frequently use terms with a peculiar meaning which express their intention. Where a contract for excavating was silent as to who should own the material excavated, it was held that oral evidence was properly admitted to show a custom that it belonged to the excavator." Parties are presumed to know and contract with reference to these known usages or customs, provided that they were established at the time the contract was made; that they were general in their application in the locality where the parties reside or else actually known to them; and that they were reasonable in their application and consistent with rules of law.

§ 116. Construction of Contract. The law has estab lished certain rules of construction to be followed by the courts in ascertaining the intention of the parties. When the intention of the parties is clear, resort should not be taken to these rules. There are two main and several subsidiary rules.

The first main rule is that the words used by the parties in expressing their contract are to be understood in their plain and literal meaning except where the parties purposely use technical terms or contract with reference to a particular custom or usage.

The second rule is that that construction should be given which will best effectuate the intention of the parties as collected from the whole of the agreement.

"In the construction of contracts, the intention of the parties to be ascertained from the words employed, the connection in which they are used, and the subject matter in reference to which the parties are contracting-must control Courts will . . . look to the entire instrument, and, if possible, give such construction that each clause will have some effect, and perform some office, and for this purpose will, as far as practicable, view the contract from the position of the parties at the time it was made, in order to understand their language, in the sense in which it was used. And such construction will be • Cooper v. Kane, 19 Wend. (N. Y.) 386, 32 Am. Dec. 512.