A distinction is to be observed between the construction of a contract and the correction of a mistake. For, if it were in proof that the parties had intended to use one word, and that another was in fact used by a mere verbal error in copying or writing, such error might be corrected by a court of equity, upon a bill filed for that purpose; and the instrument so corrected would be looked upon as the contract which the parties had made, and be interpreted accordingly. (k) But this jurisdiction is confined strictly to those cases where different language has been used from that which the parties intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties supposed and intended them to bear, still this actual meaning * would, generally if not always, be held to be their legal meaning. (l) Upon sufficient proof that the contract did not express the meaning of the parties, it might be set aside; but a contract which the parties intended to make, but did not make, cannot be set up in the place of one which they did make, but did not intend to make.

As an illustration of the principle which permits a construction in some cases which it refuses in other cases, it may be said, that where the conjunctive "and" is used in a connection which is thus rendered senseless, and the substitution of "or" will establish a sense consistent with the other parts of the document, such a change is admissible by the rules of legal construction; and this rule is sometimes applied in the construction of wills. (m) If, however, the connection may have a definite meaning by retaining the conjunctive "and," though not so obvious a meaning as the substitution of "or" would give, and either meaning would be consistent with the rest of the document, the change would not be authorized. (n)

Pettit, 16 C. B. 420, 30 Eng. L. & Eq. 479; The Loughor Coal and Railway Co. v. Williams, C. B. 1855, 30 Eng. L. & Eq. 496; Ingalls v. Cole, 47 Me. 530.

(h) See Hutchison v. Bowker, 5 M. & W. 535.

(i) Bro. Abr. Exposition del Terms, 39.

(j) State v. Dunnavant, 3 Brev. 9. And see Packard v. Hill, 7 Cowen, 434, 5 Wend. 375.

(k) Adams's Doctrine of Equity, p. 169 et seq.

(l) Ibid.

1 "Cattle" has been construed to include hogs, Decatur Bank v. St. Louis Bank, 21 Wall. 294; "timber" to include railroad ties, Kollock v. Parcher, 52 Wis. 393; "flax," raised for seed, not for fibre, as "grain," within the meaning of the word as used by the parties to a policy of insurance, Hewitt v. Watertown Ins. Co. 55 la. 323; and "patterns." as tools, Lovewell v. Westchester Ins. Co. 124 Mass. 418.

So the rules of law, as well as the rules of language, may interfere to prevent a construction in accordance with the intent of the parties. Thus, if parties agreed that one should pay the other, for a certain consideration, sums of money at various times "with interest," and it was clear, either from the whole contract or from independent evidence, that the parties meant by this "compound interest," it may be presumed (assuming that a contract for compound interest is unlawful), that no court would admit this interpretation; because, if the bargain were expressly for compound interest, it would be invalid. Nor would a contract to pay interest be avoided by evidence that the parties understood compound interest, if it were made in good faith, and for a valid consideration. The law would consider the contract as defining the principal sums due, and then would put upon the word interest its own legal interpretation.

So, too, if a manufacturer agrees to make and finish certain goods "as soon as possible," this means within a reasonable * time, due regard being had to the manufacturer's means, his engagements, and the nature of the articles. (o)1

It may be true, ethically, that a party is bound by the meaning which he knew the other party to intend, or to believe that he himself intended; (p) but certainly this is not always legally tible of the meaning in which the promisor believed they were understood by the promisee, and in which they were actually understood, the rule of Paley is as good in law as in ethics. See an application of the rule in Potter v. Ontario and Livingston Mut. Ins. Co. 5 Hill, 147, per Bron-son, J. In this case, one of the conditions of a fire policy was, that in case the assured should make any other insurance on the same property, and should not with all reasonable diligence give notice thereof to the company, and have the same indorsed on the policy, or otherwise acknowledged or approved by them in writing, the policy should cease and be of no further effect. A further insurance was effected and notice given to the company. It was answered by the secretary of the company in these words: "I have received your notice of additional insurance." Bronson, J., after stating Pales's rule, as above given, says: "Now how did the defendants apprehend at the time that the plaintiff would receive their answer? If they secretly reserved the right of approval or disapproval at a future period, could they have believed that their written answer would be so received by the plaintiff? I think not. They must have intended the plaintiff should understand from the answer, that everything had been done which was necessary to a continuance of the policy, and consequently that they approved, as well as acknowledged, the further insurance." See also 1 Duer on Ins. 159.

(m) Maynard v. Wright, 26 Bear. 285.

(n) Secombe v. Edwards, 28 Bear. 440.

(o) Atwood v. Emery, 1 C. B. (N. S.) 110.

(p) "Where the terms of the promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended, at the time the promisee received it." Paley's Mor. and Pol. Philosophy, 104. Where the terms of an instrument are fairly susceptrue. Thus, in the cases already supposed, he who was to give might know that the party who was to receive (a foreigner, perhaps, unacquainted with our language), believed that the promise was for "oxen," when the word "horses" was used; but nevertheless an action on this contract could not be sustained for "oxen." So if he who was to pay money knew that the payee expected compound interest, this would not make him liable for compound interest as such, although the specific sums payable were made less because they were to bear compound interest. In all these cases, it is one question whether an action may be maintained on the contract so explained, and another very different question, whether the contract may not be entirely set aside, because it fails to express the meaning of the parties, or is tainted with fraud; and being so avoided, the parties will then fall back upon the rights and remedies that may belong to their mutual relations and responsibilities. These must be determined by the evidence in the case; and the very contract, which, as a contract, could not be * enforced, may perhaps be evidence of great importance as to the rights and liabilities of the parties.

1 Hydraulic Engineering Co. v. McHaffie, 4 Q. B. D. 670, held, that to make a thing "as soon as possible " means to make it within a reasonable time, assuming that the manufacturer had at the time all reasonable appliances to enable him to proceed without delay, and that an accident, within his control, preventing his setting to work with reasonable diligence, would not excuse him.

It is therefore obvious that it is not enough, in every instance, to ascertain the meaning of the parties. It is, however, always true that this is of the utmost importance, and often sufficient to determine the construction. And courts of law have established various rules to enable them to ascertain this meaning, or to choose between possible meanings.