In all written contracts, the language used is the primary guide to the meaning; but it is not always conclusive. The language is sometimes ambiguous, and often not exclusive of an intention to contract either way. In such cases the sense must be derived from the interests and relations of the parties as appearing in the contract.28 The same is true of oral contracts where there is no direct evidence of the intention. Wherever the promise is by two or more persons, as where the words "we promise," etc., are used, the liability is prima facie joint;30 but the use of such expressions will not make the promise joint if, from the whole instrument, a contrary intention appears.31 Where the promise is in the singular, the liability is prima facie several; but, as in other cases, the whole instrument may show a contrary intention, and this intention must govern.32
In the case of subscriptions by a number of persons to promote some common enterprise, the promises, though joint in form, are held to be several. Each subscriber is held to promise severally to pay the amount of his subscription, and an action against all the subscribers jointly will not lie. It clearly appears from the character of such a contract that each subscriber only intends to bind himself for his own subscription, and this intention must prevail, notwithstanding the joint form of the promise.33
29 Keightley v. Watson, 3 Exch. 716; Streichen v. Fehleisen, 112 Iowa, 612, 84 N. W. 715, 51 L. R. A. 412; Smith v. Woodward, 51 Colo. 311, 117 Pac. 140; Morrison v. American Surety Co., 224 Pa. 11, 73 Atl. 10. See "Contracts," Dec. Dig. (Key-No.) § 18k; Cent. Dig. § 789.
30 Sheppard's Touchstone, 375; CITY OF PHILADELPHIA v. REEVES & CABOT, 48 Pa. 472, Throckmorton Cas. Contracts, 333; Turley v. Thomas, 31 Nev. 181, 101 Pac. 568, 135 Am. St. Rep. 667; Morrison v. American Surety Co., 224 Pa. 11, 73 Atl. 10. See "Contracts," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 789.
31 Kiug v. Hoare, 13 Mees. & W. 494; Bartlett v. Robbins, 5 Metc. (Mass.) 184; Ehle v. Purdy, 6 Wend. (N. Y.) 629; New Haven & N. Co. v. Hayden, 119 Mass. 361; Trenton Potteries Co. v. Oliphant, 58 N. J. Eq. 507, 43 Atl. 723, 46 L. R. A. 255, 78 Am. St. Rep. 612; McArthur v. Board, 119 Iowa, 562, 93 N. W. 580. See "Contracts," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 789.
32 March v. Ward, Peake, 130; Dill v. White, 52 Wis. 456, 9 N. W. 404; Fond du Lac Harrow Co. v. Haskins, 51 Wis. 135, 8 N. W. 15; Van Alstyne v. Van Slyck, 10 Barb. (N. Y.) 387; Hemmenway v. Stone, 7 Mass. 58, 5 Am. Dec. 27; Slater v. Magraw, 12 Gill & J. (Md.) 265. See "Contracts," Dec. Dig. (Key-No.) § 184; Cent. Dig. § 789.
As we have seen, these rules are to a great extent modified by statute in most of the states.34