Sec 646

But unless it contain an actual proposal and acceptance of one and the same thing, a provisional agreement has no binding force. If the terms are settled and only the form is reserved, then there is a contract, but there is no contract if terms as well as form are reserved for future settlement.4 An acceptance, also, if it introduces a condition varying, no matter how slightly from the proposal, which condition is to be embodied in a writing to be afterwards drawn, is inoperative.5

Sec 647

" The construction of a contract in writing, as of all written instruments, belongs to the court alone, whose duty it is to construe all such instruments as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts; and it is the duty of the But not if there be no actual proposal and acceptance.

Construction of contract is for court.

1 Oxford V. Provand, L. R. 2 P. C. 135.

2 Jones V. Victoria Dock Co., L. R. 2 Q. B. D. 314, cited Leake, 2d ed. 175; see supra, sec 5.

3 Heyworth V. Knight, 17 C. B. N. S. 298; see supra, sec 5.

4 Supra, sec 5,8; Leake, 2d ed. 175; Wood V. Midgeley, 5 D. M. & G. 41; Honeyman V. Marryat, 6 H. L. C. 112; Rossiter V. Miller, L. R. 5 C. D. 648; Winn V. Bull, L. R. 7 C. D. 29; and cases cited supra, sec 5.

5 Crossley V. May cock, L. R. 18 Eq. 180; infra, sec 2, 8. In Crossley V. Maycock, L. R. 18 Fq. 180, Jessel, M.

R., said: "If there is a simple acceptance of an offer to purchase, accompanied by a statement that the acceptor desires that the arrangement should be put into some more formal terms, the mere reference to such a proposal will not prevent the court from enforcing the final agreement so arrived at. But if the agreement is made subject to certain conditions then specified, or to be specified by the party making it, or by his solicitor, then, until those conditions are accepted, there is no final agreement such as the court will enforce." 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."1 And while the meaning of all disputed terms of art or business as to which testimony has to be taken is for the jury, the interpretation of the entire contract, including the terms whose meaning is thus settled, is for the court.2 It is true that the functions seem sometimes almost inextricably blended. When a contract is partly written and partly unwritten, the determining what the unwritten words actually are is for the jury, on the whole evidence of the case. Yet, supposing these words to be fixed upon, and a definition as a matter of fact assigned to them, then their meaning as related to the other words of the same contract is to be determined by the court. The blending is, therefore, merely superficial, as the two functions seem readily severed.3 The jury are to determine what the contract is, and what, in case of dispute, is the interpretation of disputed words; the court is to determine what is the construction which these words, with the meaning thus estab-lished, are to have.4