The intention of the parties, which it is the primary object of construction to discover, is a fact. It is frequently said that if the contract is in writing and if the meaning of the parties does not depend upon extrinsic evidence which is in dispute, the question is one of law;1 but this statement merely means that in such a case the question is one for the court, since it is the function of the court to construe a contract in the first instance, the question of the intention of the parties when inferred from the language of the contract and from the undisputed facts.2 It is none the less a question of fact in each case because it is to be decided by the court if the facts from which the intention is to be ascertained are not in dispute.

Carper v. United Fuel Gas Co., 78 W. Va. 433, L. R. A. 1917A, 171, 89 S. E. 12.

On the subject of construction generally, see Construction, by Thomas Thacher, 6 Yale Law Journal, 59; Considerations Preliminary to the Practice of the Art of Interpreting Writings, by Albert M. Kales, 28 Yale Law Journal, 33; On the Limits of Rules of Construction, by Howard W. Elphinstone, 1 Law Quarterly Review, 466, and Interpretation and Construction of Contracts, 2 American Law Register (N. S.), 129.

2 Kee v. Satterfield, 46 Okla. 660, 149 Pac. 243.

3 General Accident, Fire & Life Assur. Corp. v. Louisville Home Telephone Co., 175 Ky. 96, L. R. A. 1917D, 952, 193 S. W. 1031.

4 Comptograph Co. v. Burroughs Adding Mach. Co., 179 la. 83, 159 N. W. 465; Illinois Cent. R. Co. v. Vaughn (Ky.), 33 Ky. Law Rep. 906, 111 S. W. 707; Hudson v. Columbian Transfer Co., 137 Mich. 255, 109 Am. St. Rep. 679, 100 N. W. 402.

5 Hudson v. Columbian Transfer Co., 137 Mich. 255, 109 Am. St. Rep. 679, 100 N. W. 402; Northwestern Oil & Gas Co. v. Branine, - Okla. - , 3 A. L. R. 344, 175 Pac. 533.

6 Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 So. 427.

1 United States. Titus v. Whiteside, 228 Fed. 965.

Arkansas. Dugan v. Kelly, 75 Ark. 55, 86 S. W. 831.

Nebraska. Kiser v. Denney, 99 Neb. 3, 154 N. W. 835.

New Jersey. Grueber Engineering Co. v. Waldron, 71 N. J. L. 597, 60 Atl. 386.

North Carolina. Barkley v. Atlantic Coast Realty Co., 170 N, Car. 481, 87 S. E. 219.

Oklahoma. Pressly v. Incorporated Town, 54 Okla. 747, 154 Pac. 660.

Virginia. Veitch v. Jenkins, 107 Va. 68, 57 S. E. 574.

West Virginia. Riley v. Aetna Insurance Co., 80 W. Va. 236, L. R. A. 1917E, 983, 92 S. E. 417.

The so-called rules, of construction are therefore not rigid rules of law. They do not furnish a standard by which the rights of the parties can be fixed in a uniform and unvarying fashion as soon as the facts are established.3 They are rather statements of the means by which the court will infer the ultimate fact of the intention of the parties from conceded facts of the case which constitute the evidence from which the intention can be ascertained.4 It follows, therefore, that construction can not be expressed in a series of rigid rules from which in each case the legal effect of the particular contract can be determined infallibly. The principles which follow are prima facie rules for determining the mutual intention of the contracting parties, liable in any particular case to be inapplicable because of some phrase in that contract showing a contrary intention.5 They are often used to justify a result which is obtained by the court from a consideration of the contract as a whole rather than as a means of reaching the result. At the same time the rules of construction can not be ignored. The principles which a court employs in ascertaining facts do not amount to rules of law, but they must be understood as being the best and often the only available means of anticipating in advance the action of the courts and in thus ascertaining the rights of the parties. The technical rules of construction have no application as against the evident intention of the parties.6

The value of precedents in construction depends largely on the kind of contract involved. Certain kinds, such as bills of lading, insurance policies, and negotiable instruments, are drawn in set forms, and precedents as to. construction of a given form are of value in contracts of similar form, their value rapidly lessening as the form to be considered departs from that. considered in the precedent. Other contracts are rarely drawn in set forms, and in their construction, precedents are of value chiefly as illustrating the general principles by which the contract in question must be construed.7

2 See Sec. 2061 et seq.

3Hoffman v. Eastern Wisconsin Ry. & Light Co., 134 Wis. 603, 115 N. W. 383.

4 Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 So. 427; Hoffman v. Eastern Wisconsin Ry. & Light Co., 134 Wis. 603, 115 N. W. 383.

5 Scotch Mfg. Co. v. Carr, 53 Fla. 480, 43 So. 427.

6 Edwards v. Jefferson Standard Life Ins. Co., 173 N. Car. 614, 92 S. E. 695.

The principles of construction are now the same in law and in equity.8 The greater liberality shown by equity in ascertaining and enforcing the intention of the parties is now restricted to the application of equitable remedies, such as reformation, rather than to construction in the proper sense of the term.