Sec 655

Hence, when a contract has a primary meaning, which is ineffectual, from want of some technical requisite, and a secondary meaning, virtually to the same effect, which has no technical obstacle in its way, the latter meaning will be adopted by the courts.4 Thus a deed of bargain and sale, which is inoperative in consequence of failure to enrol, will be construed as a grant of its reversion.5 A conveyance, inoperative as a conveyance in fee, also, may be made effective as a declaration of trust.6 Equity, also, will relieve when fraud, after a bona fide agreement, is employed to prevent the execution of the agreement in conformity with the statute of frauds.1

Legal meaning, if possible, will be assigned.

Land V. Livingston, L. R. 5 H. L. 395; Marsh V. Whitmore, 21 Wall. 178; Patrick V. Grant, 14 Me. 233; Thrall V. Newall, 19 Vt. 202; Mech. Bk. V. Merch. Bk., 6 Met. 13; Brewer V. Hardy, 22 Pick. 376; Foster V. Rockwell, 104 Mass. 167; Bryan V. Bradley, 16 Conn. 474; Bickford V. Cooper, 41 Penn. St. 142; Cobb V. Fountaine, 3 Rand. 487; Bessent V. Harris, 63 N. C. 572; Long V. Pool, 68 N. C. 479; Evans V. Sanders, 8 Port. 497; Goosey V. Goosey, 48 Miss. 210.

1 Muir V. Glasgow Bk., cited Wb. on EV. sec 1249.

2 Wing V. Glick, Snp. Ct. Iowa, 1881. That the sense is to be that which the promisor apprehended at the time that the promisee received the promise, see supra, sec 657.

3 Oldershaw V. King, 2 H. & N. 120;.

Hamaker V. Eberley,. 2 Binn. 509; Payne V. Wilson, 17 B. & C. 423; Caldwell V. Heitsher, 9 W. & S. 53.

4 Supra, sec 337; Wood V. Leadbitter, 13 M. & W. 845; Shore V. Wilson, 9 Cl. & F. 397; Inglis V. Snng Harbor, 3 Pet. 117; Wallis V. Wallis, 4 Mass. 135; Jackson V. Phillips, 14 Allen, 556; Barrett V. French, 1 Conn. 354; Rogers V. Ins. Co., 9 Wend. 611; Many V. Iron Co., 9 Paige, 188; Evans V. Sanders, 8 Port. 497; Riley V. Van-honten, 4 How. (Miss.) 428; as to cy pres see Bisph. Eq. sec 126 et seq.; as to usury see supra, sec 462.

5 Smith V. Frederick, 1 Russ. 174; Lynch V. Livingston, 6 N. Y. 422.

6 See Price V. Dyer, 17 Ves. 356; Sprigg V. Bank, 14 Pet. 201, and other cases cited Wh. on EV. sec 1031.

Sec 656

Another important rule of construction is "that when a principal gives an order to an agent in such uncertain terms as to be susceptible of two different meanings, and the agent bona fide adopts one of them and acts upon it, it is not competent to the principal to repudiate the act as unauthorized, because he meant it to be read in the other sense, of which it is equally capable."2

Sec 657

As in a contract a concurrence of minds to one and the same thing is necessary, it is essential, in construing a written contract, to determine what was the thing as to which the parties concurred.3 The real meaning must, therefore, be sought under the formal; the intent must be gathered from the words. - And as no contracts are, both in words and surroundings, precisely the same, each contract is to be determined on its own specific conditions, subject to such general rules of interpretation as the parties may be presumed to have themselves recognized in selecting the words they used.4 To aid in understanding, in all cases of latent obscurity, what was the interpretation of the parties, extrinsic facts may be put in evidence.1 Thus the word "and" will be construed as if it were "or" when necessary to make out the sense;2 though not when either reading will be consistent with an intelligent construction.3 - The test, as has been well observed by Dr. Paley, as adopted by Mr. Chitty,4 " is not the sense in which the promisor actually intended it,. because at that rate, you might excite expectations which you never meant, nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements you never designed to undertake. It must, therefore, be in the sense (for there is none other remaining), in which the promisor believed that the promisee accepted the promise."5 Chancellor Kent speaks substantially to the same effect: - "The true principle of sound ethics is to give the contract the sense in which the person making the promise believes the other party to have accepted it." And he adds, that "the modern and more reasonable practice is to give the language its just sense, and to search for the precise meaning, and one requisite to give due and fair effect to the contract, without adopting the rule of a rigid or an indulgent construction."6 In this view, promises understood by both parties to be in jest are inoperative.7 The Roman law takes the same position. "In conventionibus contraheutium voluntatem po-tius quam verba spectari placuit. Cum igitur ea lege fun-dum vestigalem municipes locaverint, ut ad heredem ejus qui suscepit pertineret, jus heredum ad legatarium quoque transferri potuit."8 "Cum.manifestissimus est sensus testatoris, verborum iuterpretatio nusquam tantum valeat, ut melior sensu existat."9

Probable construction taken bona fide by agent will be sustained.

Document to be construed so as to bring out intent.

1 Wh. on EV. sec 911. When the intention can in no other way be executed, provisions and conditions will be construed as covenants; Huff V. Nicker-son, 27 Me. 106; and exceptions in a lease have been construed to be a grant of a right. 2 Parsons, 54, citing, Wick-ham V. Hawker, 7 M. & W. 63.

2 Blackburn, J., Ireland V. Livingston, L. R. 5 H. L. 395; adopted and approved in Benj. on Sales, 3d Am. ed. 576; De Tastett V. Crousellet, 2 Wash. C. C. 132; Loraine V. Cart-wright, 3 Wash. C. G. 151; Courcier V. Ritter, 4 Wash. C. C. 551.

3 See supra, sec 3, 4.

4 Infra, sec 827-8; Aguilar V. Rodgers, 7 T. R. 423; Doe V. Worsley, 1 Camp.

20; Shore V. Wilson, 9 C. & F. 355; McConnel V. Murphey, L. R. 5 P. C. 219; Aspden V. Seddon, L. R. 10 Ch. 377; Southwell V. Bowditch, L. R. 1 C. P. D. 377; Lawrence V. McCalmont, 2 How. U. S. 449; Bell V. Bruen, 1 How. U. S. 426; Nash V. Towne, 5 Wall. 689; Robinson V. Fiske, 25 Me. 401; Gunnison V. Bancroft, 11 Vt. 493; Hopkins V. Young, 11 Mass. 202; Quacken boss V. Lansing, 6 Johns. 49; Wilson V. Troup, 2 Cow. 195; Clark V. Woodruff, 83 N. Y. 518; Strohecker V. Bank, 6 Barr, 41; Reed V. Lewis, 74 Ind. 433; Spencer V. Millisack, 52 Iowa, 31; Balch V. Ashton, 54 Iowa, 123; Anderson V. Holmes, 14 S. C. 162.

1 Supra, sec 630; infra, sec 661, 827-8; Wh. on EV. sec 920 et seq.; Ricker V. Fairbanks, 40 Me. 43.

2 Maynard V. Wright, 26 BeaV. 285.

3 Seccombe V. Edwards, 28 BeaV. 440.

4 Ch. on Con. 11th Am. ed. 104.

5 This passage is adopted by Bron-son, J., in Potter V. Ins. Co., 5 Hill, 147; and, also, in White V. Hoyt, 73.

N. Y. 505; supra, sec 654; and as taking the same view, see remarks of Blackburn, J., infra, sec 670.

6 2 Kent, Com. 557.

7 Supra, sec 175.

8 L. 219, D. de V. S. 50-16.

9 L. 3, C. de lib. pract. (6. 28). See generally, Ihering, Jahr. f. Dogm. IV. V. 72. That a contract must have a definite meaning, see supra, sec 3.