The importance of a just and rational construction of every contract and every instrument, is obvious. But the importance of having this construction regulated by law, guided always by distinct principles, and in this way made uniform in practice, * may not be so obvious, although we think it as certain and as great. If any one contract is properly construed, justice is done to the parties directly interested therein. But the rectitude, consistency, and uniformity of all construction, enables all parties to do justice to themselves. For, then all parties, before they enter into contracts, or make or accept instruments, may know the force and effect of the words they employ, of the precautions they use, and of the provisions which they make in their own behalf, or permit to be made by other parties.
(a) The terms "interpretation" and "construction" are used interchangeably by writers upon the law. A distinction has been taken between them by Dr. Lieber, in his work upon "Legal and Political Hermeneutics. Interpretation as defined by him is "the art of finding out the true sense of any form of words; that is, the sense which their author intended; and of enabling others to derive from them the same idea which the author intended to convey." On the other hand, "construction is the drawing of conclusions respecting subjects that lie beyond the direct expression of the text, - conclusions which are in the spirit, though not within the letter of the text." See "Legal and Political Hermeneutics," ch. 1, sec. 8 ; ch. 3, sec 2; ch. 4 and ch. 5. Interpretation properly precedes construction, but it does not go beyond the written text. Construction takes place, where texts to be interpreted and construed, are to be reconciled with the rules of law, or with compacts or constitutions of superior authority, or where we reason from the aim or object of an instrument, or determine its application to cases unforeseen and unprovided for. The doctrine of cy pres belongs to construction. Rules of interpretation and construction should also be carefully distinguished from rules of law. See the able note of Mr. Preston, in his edition of Sheppard's Touchstone, p. 88; also, per Parke and Rolfe, BB., in Keightley v. Watson, 3 Exch. 716, quoted ante, vol. 1, pp. * 17, * 18. It is to be observed, also, " that when a general principle for the construction of an instrument is laid down, the court will not be restrained from making their own application of that principle, because there are cases in which it may have been applied in a different manner." Per Lord Eldon, C. J., in Browning v. Wright, 2 B. & P. 24. And see, to the same effect, the remarks of Lord Kenyan, in Walpole v. Cholmondeley, 7 T.R. 148.
It is obvious, that this consistency and uniformity of construction can exist only so far as construction is governed by fixed principles, or, in other words, is matter of law. And hence arises the very first rule; which is, that what a contract means is a question of law. It is the court, therefore, that determines the construction of a contract. They do not state the rules and principles of law by which the jury are to be bound in construing the language which the parties have used, and then direct the jury to apply them at their discretion to the question of construction; nor do they refer to these rules, unless they think proper to do so for the purpose of illustrating and explaining their own decision. But they give to the jury, as matter of law, what the legal construction of the contract is, and this the jury are bound absolutely to take. (b) 1
(b) "The construction 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 by the jury; and it is the duty of the 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. Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a Court of Error; but a misconstruction by the jury cannot be set right at all effectually, Per Parke, B., in Neilson v. Harford, 8 M. & W. 806, 823. In Hutchison v. Bowker, 5M. & W. 535, an offer had been made by letter to sell a quantity of "good barley." The letter in reply, after stating the offer, contained the following: "of which offer we accept, expecting you will give us fine barley and good weight." It was held, that although the jury might find the mercantile meanings of "good" and "fine," as applied to barley, yet they could not go further, and find that the parties did not understand each other. The question, whether there was a sufficient acceptance, was a question to be determined by the court, upon a proper construction of the letters. And Parke, B., said: "The law I take to be this, - that it is the duty of the court to construe all written instruments; if there are peculiar expressions used in it, which have, in particular places or trades, a known meaning attached to them, it is for the jury to say what the meaning of these expressions was, but for the court to decide what the meaning of the contract was. It was right, therefore, to leave it to the jury to say whether there was a peculiar meaning attached to the word 'fine' in the corn market; and the jury having found what it was, the question, whether there was a complete acceptance by the written documents is a question for the judge." See Perth Amboy Man. Co. v. Condit, 1 N. J. 659; Rogers v. Colt, id. 704; Brown v. Hatton, 9 Ired. 319; Wason v. Rowe, 16 Vt. 525; Eaton v. Smith, 20 Pick. 150; Hitchen v. Groom, 5 C. B. 515; Morrell v. Frith, 3 M. & W. 402; Brown v. Orland, 36 Me. 376; Begg v. Forbes, C B. 1855, 30 Eng. L. & Eq. 508; Rapp v. Rapp, 6 Penn. St. 45. The case of Lloyd v. Maund,
1 The construction of a contract, unless there is something peculiar to the words, by reason of the custom of the trade to which the contract relates, is for the court. Per Lord Cairns, C, in Bowes v. Shand, 2 App. Cas. 455.
* An apparent exception occurs not nnfrequently, where unusual, or technical, or official words are used, and their meaning is to be gathered from experts, or from those acquainted with the particular art to which these words refer, or from authoritative definitions. The evidence on this point may be conflicting; and then it presents a question for the jury. But the question is rather analogous to that presented by words obscurely written or half erased, and which may be read in more than one way. In all such cases, it is a question of fact for the jury, what is the word used, or what is its specific meaning in this contract; and it is a question of law, what effect this word used with this meaning has upon the construction of the contract. (c) 1 And whenever the words are of doubtful meaning the practical interpretation of the parties has much weight. (cc)
* The principles of construction are much the same at law and in equity. (d) Indeed, these principles are of necessity very similar, whether applied to simple contracts, to deeds, or to statutes. There are differences, but in all these cases the end is the same; and that is the discovery of the true meaning of the words used. So too, whether the instrument to be construed has a seal or not, the same rules and principles of construction will be applied to it. (e)
2 T. R. 760, seems contra, but that case was substantially overruled in Morrell v. Frith,3 M. &W. 402. "If I am called on to give an opinion," said Parke, B.,"I think the case of Lloyd v. Maund is not law." -Where the evidence of a contract consists in part of written evidence, and in part of oral communications, or other unwritten evidence, it is left to the jury to determine upon the whole evidence what the contract is. Edwards v. Goldsmith, 16 Penn. St. 43; Bomeisler v. Dobson, 5 Whart. 398; Morrell v. Frith, 3 M. & W. 404, per Lord Abinger. - In the case of libel, the meaning of the document forms part of the intention of the parties, and as such intention is a question for the jury, the document is submitted to them, the judge giving the legal definition of the offence. Parmiter v. Coupland, 6 M. & W. 108; per Parker, C. J., in Pierce v. The State, 18 N. H. 536, 562; per Lord Abinger, in Morrell v. Frith, 3 M. & W. 402. - So on a prosecution for sending a threatening letter, the jury will, upon examination of the paper, decide whether it contains a menace. Rex v. Girdwood, 2 East, P. C. 1120, 1 Leach's Crown Cases, 169.
(c) "When a new and unusual word is used in a contract, or when a word is used in a technical or peculiar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage. But when no new word is used, or when an old word, having an established place in the language, is not apparently used in any new, technical, or peculiar sense, it is the province of the court to put a construction upon the written contracts and agreements of parties, according to the established use of language, as applied to the subject-matter, and modified by the whole instrument, or by existing circumstances.11 Per Shaw, C. J., in Eaton v. Smith, 20 Pick. 150; Brown v. Orland, 36 Me. 376; Burnham v. Allen, 1 Gray, 496. And see preceding note.
(cc) Chicago v. Sheldon, 9 Wall. 50.
(d) 3 BL Com. 434; 1 Fonb. on Eq. 147, n. (b); Hotham v. East India Co. 1 Doug. 277; Doe d. Long v. Laming, 2 Burr. 1108; Eaton v. Lyon, 3 Ves. 692; Ball v. Storie, 1 Simons & S. 210.
1 Where the figures "$50" were on the margin of a note, and it was uncertain whether the writing on its face indicated fifty or sixty dollars, the court, on oral evidence, left it to the jury to deride the actual amount intended, Paine v. Ringold, 43 Mich. 341; and where one party said, "Go on and cultivate my farm and raise crops, and I will do what is right by you," the jury and not the court must determine whether or not the remark refers to making payments as claimed by the one so directed, McKenzie v. Sykes, 47 Mich. 294.