ILLUSTRATIONS. A written agreement was shown and read to the party, and she took a pencil for the purpose of writing her name, but perceived that her name was already written, and said that she supposed that it was all right. Held, a sufficient execution: Speckels v. Sax, 1 E. D. Smith, 253. § 2309. Terms not Included in Final Written Contract not Binding. Representations made and terms offered during the negotiation of a contract, and which are not comprehended in the final written agreement of the parties, are excluded from the contract.1 § 2310. Written Contract cannot be Varied by Extrinsic Evidence. A contract in writing cannot be varied, altered, or added to by extrinsic evidence of the intention of the parties.2 But this rule applies only to a written contract which is in force as a binding obligation.3 § 2311. Exceptions To Prove Agreement. — Parol evidence is, of course, admissible to prove the agreement; as, for example, the signatures of the parties to the document, also, the time when it was made, where no date appears. So it may be shown that it was signed upon a condition which has not been performed. So a collateral 1 Hopkins v. Tanqueray, 15 Com. B. 130; Cowley v. Watts, 22 L. J. Com. P. 591; Tye v. Fynmore, 3 Camp. 462; Pickering v. Dowson, 4 Taunt. 779. 2 Goss v. Lord Nugent, 5 Barn. & Adol. 64; Perkins v. Young, 16 Gray, 389; Cocke v. Bailey, 42 Miss. 81; Kirk v. Hartman, 63 Pa. St. 97; Halliday v. Hart, 30 N. Y. 474; Erwin v. Saunders, 1 Cow. 249; 13 Am. Dec. 520; Mott v. Richtmeyer, 57 N. Y. 49; Van Bokkelen v. Taylor, 62 N. Y. 105; Heilner v. Imbrie, 6 Serg. & R. 401; Hagey v. Hill, 75 Pa. St. 108; 15 Am. Rep. 583; Pennsylvania Canal Co. v. Betts, 1 Week. Not. Cas. 328; Gavinzel v. Crump, 22 Wall. 308; Eveleth v. Wilson, 15 Me. 109; Bromley v. Elliott, 38 N. H. 287; 75 Am. Dec. 182; Bond v. Clark, 35 Vt. 577; Bleckley v. Munson, 13 Conn. 299; Rogers v. Colt, 21 N. J. L. 704; Young v. Frost, 5 Gill, 287; Hill v. Peyton, 21 Gratt. 386; Fankboner v. Fankboner, 20 Ind. 62; Johnson v. Pollock, 58 Ill. 181; Warren v. Crew, 22 Iowa, 315; Irish v. Dean, 39 Wis. 562; Ruiz v. Norton, 4 Cal. 359; 60 Am. Dec. 618; Lemaster v. Burckhart, 2 Bibb, 25; Falconer v. Garrison, 1 McCord, 209; Davis v. Moody, 15 Ga. 175; West v. Kelly, 19 Ala. 353; 54 Am. Dec. 192; Laycock v. Davidson, 11 La. Ann. 328; Peers v. Davis, 29 Mo. 184; Koehring v. Muemminghoff, 61 Mo. 403; 21 Am. Rep. 402; Richardson v. Comstock, 21 Ark. 69; Donley v. Bush, 44 Tex. 1; Greenl. Ev., secs. 275-281; Knowlton v. Keenan, 146 Mags. 86; 4 Am. St. Rep. 283. 1 3 McFarland v. Sikes, 54 Conn. 250; Am. St. Rep. 111. Leake on Contracts, 183. 5 Leake on Contracts, 185. Pierce v. Woodward, 6 Pick. 206; Shugart v. Moore, 78 Pa. St. 469. or additional agreement, made at the time of signing a written agreement, may be separately proved, although not referred to in the written agreement.' So extrinsic evidence is necessary to show the identity of the persons charged with the contract with the parties named and described in the written document; to point out the property described in the contract." So it may be shown that the contract was made subject to a usage of trade.1 § 2312. Exceptions -Want of or Failure of Consideration. Evidence is admissible to prove a want of consideration or a failure of consideration.5 - § 2313. Latent Ambiguity. — Extrinsic evidence is admissible to explain a latent ambiguity in the instrument. "A latent ambiguity is where you show that words apply to two different things or subject-matters, and then evidence is admissible to show which of them was the thing or subject-matter intended." But as to a patent 1 Leake on Contracts, 188; Malpas v. R. R. Co., L. R. 1 Com. P. 336; Cooke v. Murphy, 70 Ill. 96. Leake on Contracts, 209. Leake on Contracts, 211. "Accordingly," says this author, "where the subject of property is described in the contract or conveyance by the locality as being in a particular parish or place; or by its character, quality, or use, as in a contract to sell 'the mill property'; or by the ownership, as in a contract to sell 'my house,' or 'Mr. O.'s house'; or by the occupation of a certain person, in all such cases evidence is admissible to show what is the property answering to the description of place, character, ownership, or occupation, or what is reputed so to be. Upon the same principle with a contract for the sale of goods by a specific description, evidence is necessary to ascertain and apply the contract to the goods intended; as a contract expressed in a letter offering to buy 'your wool."" 'Lawson on Usages and Customs, 173. Foster v. Jolly, 1 Cromp. M. & R. 707. Smith v. Jeffreys, 15 Mees. & W. 562; Grey v. Harper, 1 Story, 574; Goldshede v. Swan, 1 Ex. 158; Verzan v. McGregor, 23 Cal. 339; Hinneman v. Rosenback, 39 N. Y. 98; Waymack v. Heilman, 26 Ark. 449; Wood v. Augustine, 61 Mo. 46; Baldwin v. Winslow, 2 Minn. 213; Fenderson v. Owen, 54 Me. 374; 92 Am. Dec. 551; Stone v. Aldrich, 43 N. H. 52; Simpson v. Kimberlin, 12 Kan. 579; Jenkins v. Cooper, 50 Ala. 419; American Express Co. v. Schier, 55 Ill. 140; Lowry v. Adams, 22 Vt. 160; Conover v. Wardell, 20 N. J. Eq. 266; Davis v. Shaw, 42 Md. 410; Terrell v. Walker, 69 N. C. 244; Poindexter v. McCannon, 1 Dev. Eq. 373; 18 Am. Dec. 591; Armstrong v. Burrows, 6 Watts, 266; Insurance Co. v. Troop, 22 Mich. 146; Greene v. Day, 34 Iowa, 328; Sargent v. Adams, 3 Gray, 72; 63 Am. Dec. 718. ambiguity, i. e., one appearing on the face of the instru ment itself, extrinsic evidence is not admissible.1 § 2314. Fraud, Duress, Illegality, etc. So evidence is admissible to prove that an agreement was entered into in fact under such circumstances of mistake or accident that no intention of agreement can be imputed; or that it was induced by the fraud, or duress, or improper influence of one of the parties exercised upon the other; or that it was made in furtherance of an illegal object.2 § 2315. Construction of Written Contracts." The construction of a contract in writing, as of all written instruments, belongs to the court. It is the duty of the jury to take the construction from the court; either absolutely, if there be no words to be construed, as words of art or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them." Where two or more instruments are executed at the same time, relate to the same subject-matter, and one refers to the other, either tacitly or expressly, they are to be taken together, and to be construed as one instrument. Where two instruments are executed as parts 1 Aspden's Estate, 2 Wall. Jr. 368. Prentiss v. Russ, 16 Me. 30; Grider v. Clopton, 27 Ark. 244; Horn v. Brooks, 61 Pa. St. 407; Burtners v. Keran, 24 Gratt. 42; Lull v. Cass, 43 N. H. 62; Franchot v. Leach, 5 Cow. 508; Mitchell v. McDougal, 62 Ill. 498; Jamison v. Ludlow, 3 La. Ann. 492; Montgomery v. Pickering, 116 Mass. 227; Wray v. Wray, 32 Ind. 126; Turner v. Turner, 44 Mo. 535; McLean v. Clark, 47 Ga. 24; Paxton v. Popham, 9 East, 421; Olivari v. Menger, 39 Tex. 76; Bosley v. Shanner, 26 Ark. 280; Miller v. Miller, 68 Pa. St. 486; Hibbard v. Mills, 46 Vt. 243; Spaids v. Barrett, 57 Ill. 289; 11 Am. Rep. 10; Knapp v. Hyde, 60 Barb. 80; Teller v. Green, 26 Mich. 70; Cadwallader v. West, 48 Mo. 483; Benyon v. Nettlefold, 3 Macn. & G. 94; Waymell v. Reed, 5 Term Rep. 600; Briggs v. Lawrence, 3 Term Rep. 454; Norman v. Cole, 3 Esp. 253; Chamberlain v. McClurg, 8 Watts & S. 31; Shackford v. Newington, 46 N. H. 415; Williams v. Donaldson, 8 Iowa, 109; Corbin v. Sistrunk, 19 Ala. 203; Wyman v. Fiske, 3 Allen, 238; 80 Am. Dec. 66; Martin v. Clarke, 8 R. I. 389; 5 Am. Rep. 586; Newsom v. Thighen, 30 Miss. 414; Lazare v. Jacques, 15 La. Ann. 599; Leppoc v. Bank, 32 Md. 136. Neilson v. Harford, 8 Mees. & W. 823. See ante, Chapter CVIII., Contracts under Seal. Vaugine v. Taylor, 18 Ark. 65; Dillingham v. Estill, 3 Dana, 23; Adams v. Hill, 16 Me. 215; Rora of the same transaction and agreement, whether at the same or different times, they will be taken or construed together. In the interpretation of a contract of which a portion is printed and a portion written, greater weight will be given to the written portion than to the printed words, where they are in conflict and tend to different results. But this rule only applies where the written and printed parts cannot, upon any reasonable construction, be reconciled." § 2316. Intent of Parties to be Followed, if Possible."In all contracts, where the meaning of language is to be determined by the court, the governing principle must be to ascertain the intention of the parties through the words they have used. This principle is one of universal application." So every part of a document should be construed with reference to the intention of the parties as to the whole contract. To ascertain that intention, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects which they had in view. Where the intent is doubtful, 5 bacher v. Lee, 16 Mich. 169; Rogers v. Kneeland, 13 Wend. 114; Spangler v. Springer, 22 Pa. St. 454; Sewall v. Henry, 9 Ala. 24; Logan v. Tibbett, 4 G. Greene, 389. 1 Ins. Co., Anth. 31; American Ex. Co. McConnel v. Murphy, L. R. 5 P. C. 218; Mathews v. Phelps, 61 Mich. 327; 1 Am. St. Rep. 581; Smith v. Kerr, 108 N. Y. 31; 2 Am. St. Rep. 362. 3 Stacey v. Randall, 17 Ill. 467; Hill Wheeling etc. R. R. Co. v. Gourley, v. Huntress, 43 N. H. 480; Stephens 99 Pa. St. 171. v. Baird, 9 Cow. 274; Makepeace v. Harvard College, 10 Pick. 302; 20 Am. Dec. 521; Sibley v. Holden, 10 Pick. 250; Hunt v. Livermore, 5 Pick. 395; Meriden Brittania Co. v. Zingsen, 4 Robt. 312; Brandreth v. Sandford, 1 Duer, 390; Cordray v. Mordecai, 2 Rich. 518; Wallis v. Beauchamp, 15 Tex. 303; Strong v. Barnes, 11 Vt. 221; 34 Am. Dec. 684; Duncan v. Charles, 5 Ill. 561; Reed v. Field, 15 Vt. 672; Norton v. Kearney, 10 Wis. 443; Berry v. Wisdom, 3 Ohio St. 241. 2 Clark v. Woodruff, 83 N. Y. 518; Russell v. Bondie, 51 Mich. 76; Thornton v. R. R. Co., 84 Ala. 109; 5 Am. St. Rep. 337; Howland v. Commercial Leake on Contracts, 224. Mobile etc. R. R. Co. v. Jurey, 111 U. S. 584; Strong v. Gregory, 19 Ala. 46; The Ida, Dav. 407; Lemmons v. Flanakin, 1 Hemp. 32; Benjamin v. McConnell, 9 Ill. 536; 46 Am. Dec. 474; Conwell v. Pumphrey, 9 Ind. 135; 68 Am. Dec. 611; Montgomery v. Fireman's Ins. Co., 16 B. Mon. 427; Murray v. Carothers, 1 Met. 71; White v. Booker, 4 Met. 267; Akin v. Drummond, 2 La. Ann. 92. the manner in which the contract has been executed by both or one of the parties with the express or implied assent of the other furnishes a rule for its interpretation. But regard should be had, not to single acts, but the whole execution of the agreement. Where two clauses in a contract are inconsistent, they must be so construed as to give effect to the intention of the parties as gathered from the whole instrument. Technical rules of construction. are not to be resorted to, where the meaning of the parties is obvious. § 2317. Words to be Construed According to their Ordinary Meaning.-Words are to be understood in their plain, ordinary, and popular sense; but technical words. used on technical subjects are to be understood in their technical, which is then their primary, meaning; and mercantile terms used in mercantile contracts are to be understood in their ordinary mercantile meaning. The law will presume that a person meant what his language, by its terms, and under the circumstances in which it was used, would be fairly understood to mean, and this presumption cannot be rebutted by proof that he intended something more or different, which he made no attempt to express, and which a person dealing with him neither understood nor had reason to understand. But too much stress is not to be laid upon the precise meaning of words when the intention is manifest. If no meaning can be given to a word from the connection in which it is used, nor consistently with express provisions of the instrument, nor upon the examination of the whole instrument, 1 Farrar v. Rowley, 2 La. Ann. 475; D'Aquin v. Barbour, 4 La. Ann. 441; Casey v. Pennoyer, 6 La. Ann. 776; Topliff v. Topliff, 122 U. S. 121; Mathews v. Danahy, 26 Mo. App. 660; Jennings v. Machine Co., 138 Mass. 594. 2 Bent v. Alexander, 15 Mo. App. 181. 3 Noyes v. Nichols, 28 Vt. 159; McConnell v. New Orleans, 35 La. Ann. 273. Hawes v. Smith, 12 Me. 429; Mansfield etc. R. R. Co. v. Veeder, 17 Ohio, 385. Clark v. Lillie, 39 Vt. 405. 6 Salmon Falls etc. Co. v. Portsmouth Co., 46 N. H. 249. |