The purpose of construe tion of contracts is to discover the intention of the parties.
It is not a court's business, nor has it power, to impose contracts on parties before it. It will endeavor to ascertain what obligations the parties imposed upon themselves. To accomplish this it seeks to arrive at the parties' intentions as expressed in their acts and words. To that end it calls to its aid certain rules of construction which are suggested by experience and by reason to be reliable manifestations of the real intentions of the contracting parties. In instances, those tests may fail, and an obligation may be imposed which was never intended by the party, as where he has ignorantly or carelessly used expressions from which his true intent does not appear. Yet every one must know that others have only his outward expressions whereby to read his inward meaning, and it will not be afterwards permitted one to say that his true intention was contrary to his seeming one as the other party was entitled to read it.
It is not every intention, of course, which the law will enforce. This has been noticed in respect to all illegal agreements, and in certain instances, where the contract is not illegal yet some provisions in it are against public policy. These provisions will be ignored and not enforced.
The chief rules whereby the courts interpret the intentions of the parties are enumerated below.
(1) While to discover the true intention of the parties is the chief aim of the court, that intention is to be gathered from the words and conduct of the parties in making the contract and a secret intention not so expressed is of no avail.
The only way whereby the intention of the parties may be read is from the language employed, or in cases of implied terms, the conduct of the parties. This language or conduct is, then, the only source to which one can go to discover the intention. Where these words are unambiguous and plain, the courts sometimes say that there is then nothing to construe, meaning thereby that as the parties have plainly spoken, the only thing remaining to be done is to enforce the contract, as expressed; and it may be said, generally, that the rules following have no application where from the unambiguity of the terms no question can arise concerning their meaning.
The secret intention of a party, where it differs from his seeming intention as expressed by him, is immaterial and he cannot afterwards assert what his secret meaning was. Of course, this is the most reasonable of rules and in fact the only feasible one to apply.
(2) Words will be construed in their ordinary meaning, unless it can be shown they are mutually understood by the parties to have an especial sense.
If the words are shown to have been used in a narrow technical sense or in some especial sense under the circumstances, that is the meaning they will be given; but otherwise they will be construed in their common meaning.
(3) Each party will be presumed to have used the words in the sense in which under the circumstances he should have known that the other party was entitled to understand them.
This is perhaps only saying in another way that one cannot afterwards assert a secret intention. If he knows or should know that under the circumstances the other party is affixing a certain meaning to the words employed, he cannot afterwards assert that he used them in any other meaning.
The contract often will disclose from its entire wording an evident intent which it is necessary to read in order to construe parts of the contract which are ambiguously worded.
(5) That construction will be adopted when possible which will uphold a contract rather than defeat it.
Where two constructions are possible, one of which will defeat a contract, the other uphold it, the latter construction will be adopted.
(6) Every part of a contract will be given effect where possible.
(7) The words employed will be construed most strongly against the party using them.
If words are equally applicable to both parties, of course, this rule cannot apply. Often, however, one party draws the contract and chooses the words, and if such words have a double meaning fairness requires a construction in favor of the other party.
(8) Written words will prevail over printed where in conflict.
The sense of this rule is apparent. Parties show their real intention by writing in words, even though by mistake or oversight they do not erase the print.
(9) Punctuation will be disregarded where it interferes with the obvious sense.
(10) When the meaning is ambiguous the construction placed upon the contract by the parties is admissible to show its meaning.
(11) Where a custom or usage is shown to be generally adopted and known, the words will be considered as having been used in the sense such custom or usage attaches to them.
If a custom or usage is shown to be of such general and well-known nature that the parties must be considered in the absence of contrary proof to have acted in reference to it, such custom or usage will govern the meaning of the terms used.