Sec 637

When a contract is drawn at the common domicil of both parties, the law prevailing in such domicil is to determine the interpretation of the contract.2 When, however, a contract is entered into in this country by foreigners, with a view of performance in their own country, then the law of the place of performance is to prevail.3 But the law of the place of solemnization does not control when it is not the personal law of the parties, or the law of the place where the contract is to be performed.4 The Roman law is to the same effect; the test is the place where actum est, or negotium gestum est, not where contraetum est.5 Hence, the place in subordination to whose idioms a word is used is to determine the sense of that word.6 Thus, under a contract to carry a full and complete cargo of molasses from Trinidad to London, evidence will be received to show that by the usage of the place of loading, which was in contemplation by the parties, a cargo is full and complete if the ship be filled with casks of the standard size, though there are other casks of a smaller size freighted in the same vessel.7 London custom, also, is admissibleto explain the usage of agents acting in London.1 Persons, also, living and doing business in a particular community are supposed, when adopting the dialect of that community, to use it in the vernacular sense.2 When a contract is entered into by correspondence, then the usage of the place of the writer who first uses the litigated words is decisive unless it appear that he accommodated himself to the usages of some other place.3 Where, however, the term is used in reference to a particular place of performance, then the meaning assigned to it in such place of performance is to prevail.4

Place in subordination to whese idioms a word is used is to determine meaning of word.

1 Wh. on EV. sec 1022, 1028.

2 Wh. Con. of L. sec 434; Story, Con. of L. sec 263; Wilcox V. Hunt, 13 Pet. 378; Courtois V. Carpenter, 1 Wash. C. C. 376; Watson V. Brewster, 1 Barr, 381; Allshouse V. Ramsey, 6 Whart. 331; Benners V. Clemens, 58 Penn. St. 24; Balt. & Oh. R. R. V. Glenn, 28 Md. 287; Morris V. Eves, 11 Mart. 730.

3 Wh. on EV. sec 960; Stebbins V. Leowolf, 3 Cush. 137; see Howard V. Ins. Co., 109 Mass. 384.

4 Hall V. Costello, 48 N. H. 176.

5 Koch, II. 224; L. 34, D. de reg. jur.; L. 17; L. 3, D. de reg. auct. jud. (42, 5).

6 Vallance V. Dewar, 1 Camp. 503; Bottomley V. Forbes, 5 Bing. N. C. 121; Spicer V. Coopey, 1 Q. B. 424; Buckle V. Knoop, L. R. 2 Ex. 125; Eldredge V. Smith, 13 Allen, 140; Fitch V. Carpenter, 43 Barb. 40; Walls V. Bailey, 49 N. Y. 467; Barton V. Mc-Kelway, 22 N. J. L. 165.

7 Cuthbert V. Cumming, 11 Ex. 405.

Sec 638

In informal documents, the plain meaning is to prevail.5 "Words," so it is said, "are to be construed according to their strict and primary acceptation, unless, from the context of the instrument, they appear to be used in a different sense, or unless in their strict sense they are incapable of being carried into effect."5 "We ought to read the words," so it is added, " in their ordinary sense, and not to depart from it, unless it is perfectly clear from the context that a different sense ought to be put on them."7 Thus the term " insolvency" in a condition that a contract should terminate on the insolvency of the buyer, is held to mean inability to pay, not technically adjudicated insolvency.1 The word "suspended," also, in an agreement that a right of action should be suspended for a certain time, is construed not as barring suit, but merely as agreeing conditionally for a time not to sue.2 "Good-will," also, whatever may be its technical meaning, is to be interpreted in reference to the actual rights possessed by the party conveying.3

In informal documents plain meaning will not be postponed to technical.

1 Johnston V. Usborne, 11 A. & E. 549. Dr. Lieber gives as an illustration of local meaning, "femme sage," which in France means, not "wise woman, but midwife." Horace Wal-pole tells of an Englishman who produced some confusion at a French party, by saying to a lady that he appealed to her as a "femme sage.".

2 Trimby V. Vignier, 1 Bing. N. C. 151; Clayton V. Gregson, 5 Ad. & El. 302; De la Vega V. Vianna, 1 B. & Ad. 284; Taylor V. Briggs, 2 C. & P. 525; De Wolf V. Johnson, 10 Wheat. 367; Bank U. S. V. Doually, 8 Pet. 368; Wilcox V. Hunt, 13 Pet. 378; Pope V. Nickerson, 3 Story, R. 465; Sheets V. Seldon, 2 Wall. 178; Hall V. Costello,.

48 N. H. 176; Coit V. Ins. Co., 7 Johns. 385; Aster V. Ins. Co., 7 Cow. 202; Depaw V. Humphreys, 8 Mart. N. S. 1.

3 Wh. Con. of L. sec 435; Power V. Whitmore, 4 M. & S. 141.

4 Wh. Con. of L. sec 437, and cases there cited; and see Hall V. Costello, 48 N. H. 176.

5 Supra, sec 632.

6 Per cur. Mallan V. May, 13 M. & W. 517.

7 Pollock, C. B., Caine V. Horsfall, 1 Ex. 519; adopted in Leake, 2d ed. 222; see Garrard, ex parte, L. R. 5 C. D. 61; Bowes V. Shand, L. R. 2 Ap. Ca. 455; Mallan V. May, 13 M. & W. 517; Fowell V. Tranter, 3 H. & C. 458.