Sec 671

We have already seen that in construing a document the construction most in accordance with good faith will be In the Roman law, on the question as to who is responsible in this sense for the expressions used in a contract, we have the following conclusions: taken. It follows from this that when a party introduces terras fraudulently with intention afterwards to take advantage of their ambiguity, the sense less favorable to himself will be preferred by the court; the ostensible meaning, as understood by the other side, excluding the secret meaning fraudulently reserved by himself.1

1. In stipulations the duty is on the stipulator, as he is the one on whom the duty of propounding the question falls. On the same reasoning, in cases of a proposal and simple acceptance, then the duty of unambiguity falls on the person making the proposal.6.

2. In contracts of sale the duty falls on the vendor, in contracts of hiring, on the hirer, because such parties, having possession of the thing sold or hired, are more familiar with its character, and, from the nature of the case, know what interests they propose to part with.

3. Subsidiary clauses are to be con-.

1 Ibid.

2 See Savigny, Sys. Rom. Rechts, I. sec 32 ff.; Koch. sec 91.

3 L. 21 D. de cont. emt. xvii. 1. To the same effect are L. 39 D. de pactis. ii. 14; L. 99 D. de verb. ob. xlV. 1.

4 Boehmer's treatise is under the title "De interpretatione facienda contra eum qui clarius loqui debuisset," Halle, 1767.

5 See these points discussed in Boeh-mer, op. cit. sec 19; and in Steeb, diss. sistens quaestionem qui sit is, qui in conventione ambigua clarius loqui debuisset, Tub. 1792.

6 See supra, sec 2, 8.

Sec 672

"Semper in dubiis benigniora praeferenda sunt," is a Roman maxim which is authoritative in our own jurisprudence.2 To the same effect is the rule "Semper in obscuris quod minimum est sequimur."3 In other words, the construction, in all cases of doubt, should be such as to dispense remedial justice.4

Sec 673

Although when in a will there are two incompatible provisions the last is to prevail, the common rule as to deeds is that the first of two incompatible provisions is to prevail as against the second in all cases in which the incompatibility is not such as to make the document insensible.5 It is otherwise when the second limitation only qualifies the first.1 But when there are several contracts of different dates, the latest overrides its predecessors.2

And so as to fraudulent terms.

In doubt more benignant construction to be preferred.

Where there are incompatible clauses, the first prevails.

strued against the party by whom they are introduced.6

The conclusions above stated are based on the rule which has been already discussed, that where a party making a statement is bound to disclose all the facts, he becomes liable for the consequences of his non-disclosure.7 A party who could state specific facts which are important ingredients in a proposal he makes, but declines so to do, is estopped from setting up these facts against the party who accepts his proposal on the faith of the terms he presents; and for the same reason a party is estopped in setting up facts which would resolve in his favor ambiguities which the other party had bona fide taken in a sense more favorable to himself.8

1 Supra, sec 654, 657; see Collis V. Emmett, 1 H. Bl. 313.

2 L. 168 pr. I. 192, sec 1, eod., I. 32 sec 4 D. de don. I. V. e. u. 24 I.

3 L. 9. 34, D. de R. I. 50, 17.

4 Noonan V. Bradley, 9 Wall. 395; see Whitehouse V. Gas Co., 5 C. B. 798; Mallan V. May, 13 M. & W. 511.

5 Furnwall V. Combes, 3 M. & G. 736; Cother V. Merrick, Hardw. 94; Cope V. Cope, 15 Sim. 118; Gully V. Gully, 1 Hawks, 20.

6 See Zacharia, Versuch einer al-gemeinen Hermeneut. Meissen, 1805, sec 88.

7 Supra, sec 249.

8 See Bigelow on Est. 3d ed. pp. 486 el seq. In Adams V. Brown, 16 Oh. St. 175, a party using an ambiguous name was held estopped from setting up the true meaning of the name as against the other party who bona fide accepted the name in another probable meaning. In Knights V. Wiffen, L. R. 5 Q. B. 660, an ambiguous letter was held to estop, as against the party bona fide taking it on a probable construction, the party from whom it emanated; see criticism in Big. Est. 3d ed. 558.