In an action of covenant to recover the arrears of an annuity granted to the plaintiff for the use of his sister, the defendant's wife, the defendant pleaded a deed executed by the plaintiff, whereby it was covenanted that if the defendant's wife should "associate, continue to keep company with, or cohabit, or criminally correspond with J. F.," the annuity should cease, &c. It was held at the trial, that all intercourse, as mere visiting, &c., however innocent, was prohibited. "And the court (on a motion for a new trial) were clear that this deed had received a perfectly right construction; for it appeared by the evidence, that, short of a criminal intercourse, Mr. F. was a suspected person. The words of the deed were as general as could be, and went much further than the mere exclusion of criminal cohabitation: the intention was to put a stop to all intercourse whatever between these two persons. The receiving a man's visits whenever he chooses to call, is associating with him. The parties had chosen to express themselves in those terms, and the words must receive their common meaning and acceptation (t)." So a warranty on the sale of Scotch pork, that the pork should be Scott & Co's., is a warranty that it was pork manufactured by Scott & Co (u). An agreement to sell all the naptha that the defendant might make from a fixed day for the term of two years, say from 1000 to 1200 gallons per month, at the rate of 2s. 6d. per gallon, only means that the defendant will sell so much as may be made by him, though it may be less than the quantity stated, and it is no breach of the agreement on defendant's part that he did not make the average quantity named, the expression "say from 1000 to 1200 gallons" meaning merely that in all probability the quantity of naptha produced will amount to 1000 or 1200 gallons (x). And where it was stipulated that an agreement between 4. and B. for the sale by B. to A. of all salt that should be manufactured on B.'s premises, should be determined by bankruptcy or insolvency on the part of A., the word insolvency was construed in its ordinary sense, and was held to imply an inability Morrice, 2 Ad. & E. 84; Roberts v. Davey, 4 B. & Ad. 664. "Habitable repair," Belcher v. M'Intosh, &C. & P. 772. Exposing to sale is not a vending within prohibition of a patent; Minter v. Williams, 4 Ad. & E. 251. (t) Lord Dormer v. Knight, 1 Taunt. 417 (u) Powell v. Horton, 2 Bing. N. C. 668; 3 Scott, 110, S. C. (x) Gwillim v. Daniel, 2 C. M. & R. 61; 1 Gale, 143, S. C. in A. to pay his just debts, and not that he should be discharged under the insolvent act (y). Mercantile Contracts are to be construed according to the usage and custom of merchants, who have a style and language peculiar to themselves, and parol evidence is admissible to show that words apparently having only an ordinary meaning, are known and understood by a particular class of persons to have a special and technical meaning (z). The construction of a particular mercantile expression therein is matter for the jury (a); although it is in general the province of the court to construe a written instrument. A general dictionary of the English language is not admissible. to explain mercantile expressions (b). Thus where timber was sold warranted "sound," evidence was admitted to show that by the custom of trade the term "sound" means soundness, after making fair and reasonable allowance for unsound parts (c). In assumpsit upon a charter party which related to cotton to be brought from Alexandria to Liverpool, the question turned upon the meaning of the words "cotton in bales," used in the instrument. And Abbott, C. J., observed, "the important point here is as to the meaning of the word bale; one party contending that it means a compressed bale, the other party that it means a bag. If the word bale had acquired a particular meaning in regard to the trade of Liverpool and Alexandria, I should consider that that meaning should apply in this case; but there should be distinct evidence that the word has that particular meaning. The jury found that the word bale meant a compressed bale (d)." So where a practice prevailed of compressing bales of cotton wool by machinery to improve their stowage, the furnishing a cargo of cotton wool in uncompressed bales, as they came from the grower, was held not to be a compliance with a contract to load (y) Parker v. Gossage, 2 C. M. & R. 617; 1 Gale, 288; 1 Tyr. & G. 105, S. C., ante, 81. (*) Per Gibbs, C. J. and Dallas, J., Gibson v. Young, 8 Taunt. 261, per Parke, J.; Smith v. Wilson, 3 B. & Ad. 728; Whittaker v. Mason, 2 Bing. N. C. 370; Cross v. Eglin, 2 B. & Ad. 106. a full (a) Smith v. Bland, R. & M. 260. 701. (c) Woodhouse v. Swift, 7 C. & P. 310. (d) Taylor v. Briggs, 2 C. & P. 525; M. & Mal. 28, S. C. not S. P.; see also Bottomley v. Forbes, 5 Bing. N. C. 121. and complete cargo, not exceeding what the ship could reasonably stow (e)." So parol evidence of mercantile usage is admissible to explain apparent variances between bought and sold notes (ƒ). The ordinary and more extensive meaning of the words used in an agreement, ought to be departed from where they involve an absurdity, and entail upon the contractor a disproportionate responsibility, which it cannot reasonably be presumed he meant to assume. This, perhaps, forms an exception to the rule that a contract shall be taken most strongly against the promiser (g). The Whole of the Agreement is to be considered.-The construction is to be upon the entire deed or agreement; not merely upon disjointed or particular parts of it. The whole context shall be considered in endeavouring to collect the intention of the parties; although the immediate object of inquiry be the meaning of an isolated clause. Ex antecedentibus et consequentibus fit optima interpretatio. Every part of the instrument shall be, if possible, made to take effect. Nam verba debent intelligi cum effectu ut res magis valeat quam pereat (h). We have already seen that in the case of a bond with a condition, the latter may be read and taken into consideration, in order to correct and explain the obligatory part of the instrument (i). And words (e) Benson v. Schneider, 7 Taunt. 272. See as to "sailing with convoy," Lilly v. Ewer, Dougl. 72; Anderson v. Pitcher, 2 B. & P. 164; as to a warranty "to sail in the month of October," Chaurand v. Angerstein, Peak, R. 43; and as to the "privilege" of an East Indiaman, Birch v. Depeyster, 4 Camp. 385; "scarlet cuttings," Bridge v. Wain, 1 Stark. R. 504; as to a contract to purchase" about three hundred quarters of foreign rye, little more or less, shipped on board, &c.," Cross v. Eglin, 2 B. & Ad. 106; as to 66 days" in a bill of lading, Cochran v. Retberg, 3 Esp. 121. (f) Bold v. Rayner, 1 M. & W. 343. (g) Post, 96. See Taylor v. Briggs, 2 C. & P. 525. (h) 2 Bla. Com. 379, 380, cites 1 Bulstr. 101; 1 P. Wms. 457; Plowd. 156. See Trenchard v. Hoskins, Winch. (i) Ante, 76, 77. So the omission of the word pounds in a bill, may be corrected, and aided by the superscription, id. may be transposed, if it be necessary to do so, in order to give effect to the evident intent of the parties (k). As if a lease for years be made in February, rendering a yearly rent payable at Michaelmas-day and Lady-day during the term, "the law will make a transposition of the feasts, viz. at Lady-day and Michaelmas-day, that the rent may be paid yearly during the term. And so it is in the case of an annuity (7)." It is upon these principles that even the recital in a deed or agreement may be looked at, in order that the meaning of the parties may be ascertained; and that the general words of a subsequent distinct clause, or stipulation, may often be explained or qualified by the matter recited. It was recited in a composition deed, that the defendant was indebted to his creditors in the several sums set to their respective names, and that they had agreed to take of him 15s. in the pound thereon. And then the creditors, in consideration of the said 15s. in the pound, paid to them before executing the deed, released the defendant from all manner of actions, debts, claims, and demands in law and equity, which they or either had against him, or thereafter could, should, or might have by reason of any thing from the beginning of the world to the date of the release. It was held that the release did not extend to any thing but the respective debts recited, and all actions and demands touching them; for the general words of the release had reference to the particular recital, and were governed by it (m). And parol evidence may, in cases of this kind, be received to show and explain the nature of the matter recited, where the recital is in general terms (n). And, even where there is no recital, a general covenant may often, in reference to the subject matter, be qualified or restricted by a subsequent special provision. A lease was granted by the plaintiff to J. S., and the defendant was a party thereto. J. S. covenanted generally to pay the rent, and there was a general covenant by the defendant that J. S. should pay the rent on the respective days, and that he should perform the other covenants; and that in case J. S. should not pay the rent for forty days, defendant would pay it on demand. The Court held that the de (k) Parkhurst v. Smith, Willes, R., 1 D. & R 211, S C.; per Lord El· 332, per Willes, C. J. (1) Co. Lit. 217 b. (m) Payler v. Homersham, 4 M. & Selw. 423; confirmed in Simons v. Johnson, 3 B. & Ad. 175; and see Lampen v. Corke, 5 B. & Ald. 606; lenborough, Hassell v. Long, 2 M. & Selw. 369; Bottrell v. Summers, 2 Y. & J. 407. (n) Simons v. Johnson, 3 B. & Ad. 175. fendant was not liable, until after a default by J. S. for forty days; for that the preceding general covenant by defendant was qualified by the latter stipulation, which they thought was introduced for his ease and protection: "the covenants of the defendant, though several in point of fact, not being so in point of obligation (o)." So where A. demised a colliery to B., and B. covenanted to pay as rent" one third part of the money that should arise, be made, received, or produced from the sale of the coals," and also covenanted to keep" true accounts of all coal daily raised, and to make and deliver true copies thereof to A.," it was held, that taking the two covenants together, the rent was to be calculated on the amount of coals sold, and not on the amount of money actually received (p). It follows from these principles, that even matter put only by way of recital in an instrument, may amount to an agreement, where such recital is to be called into action to discover and give effect to the obvious meaning of the parties; provided it is plain, from the whole tenor of the instrument, that the parties mutually contemplated and intended that the matter or act should be performed (2). Thus, in Sampson v. Easterby (r), where a lease of an undivided third part of certain mines contained a recital of an agreement made by the lessee with the lessor, and the owners of the other two-thirds, for pulling down an old smelting mill, and building another of larger dimensions, and the lease contained a covenant to keep such new mill in repair, and so leave it at the expiration of the term, but did not contain a covenant to build it; it was held that such covenant was to be implied, but that the lessor of the one-third might maintain an action of covenant upon it, in respect of his interest. So words by way of exception may, for the same reason, constitute a covenant or agreement (s). Thus a covenant in a lease to plough, cultivate, &c., the premises demised, "except the rabbit-warren and sheep-walk," amounts to a stipulation not to plough the rabbit-warren and sheep-walk, and covenant lies for so doing (t). And a covenant or agreement may (0) Sicklemore v. Thisleton, 6 M. & Sel. 9. (p) Edwards v. Rees, 7 Car. & P. 240. (9) See cases, Platt on Co. $3. (r) 9 B. & C. 505; 4 Man. & R. 422; affirmed in error, 1 C. & J. 105; 4 Moo. & P. 601; and see Saltoun v. v. Houston, 1 Bing. 433. (s) See per Lord Gifford, in Saltoun v. Houston, 1 Bing. 433; and Lord Tenterden, 9 B. & C. 513, 514. (t) Duke of St. Alban's v. Ellis, 16 East, 352. See further, Platt on Cov. 31. |