This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Since a contract must be construed as a whole, effect must be given to writings incorporated in the contract by reference.1 An instrument which is in the form of a promissory note but which states that it is given for "rent * * * as per contract" of a certain date, incorporates such contract, and if such contract shows that such payment is not due unconditionally, but only in case of the performance of the contract, the instrument itself is not negotiable.2 A contract for the transportation of goods which refers to the request which the shipper has made for such transportation, incorporates such request and accordingly operates as a limitation of the liability of the shipper to the value of the goods which was stated in such request.3 The parties may, if they choose, adopt an existing contract in writing by an express reference thereto.4 If a contract by which A agrees to sell to B a part of A's rights under A's contract with C, and the contract with A and B refers in express terms to the contract between A and C, both of suec contracts must be construed together.5 A reference in a building contract to drawings and specifications made by a specified architect, "signed by the parties and hereto annexed." is to be regarded as applicable to a number of pages of specifications and sheets of drawings which are fastened together and are attached to the contract and are signed by the parties upon the last page.6 The agent of an insurance company agreed to issue a standard policy. Such policy was not issued. In an action by the insured after loss for damages caused by breach of such contract it was held that the standard form of policy was a part of such contract, and hence the insured was bound to show that the same proof of loss had been made as if the policy had issued.7 However, a contract to give a mortgage "in your usual form" does not give the right to insert "unusual terms and conditions" different from those used before.8
1 Alabama. Sewall v. Henry, 9 Ala. 24; Piedmont, etc., Co. v. Motor Co. (Ala.), 12 So. 768; Mobile County v. Linch, - Ala. - , 73 So. 423.
California. Howe v. Schmidt, 151 Cal. 436, 90 Pac. 1056; Donlon v. Southern P. Co., 151 Cal. 763, 11 L. R. A. (N.S.) 811, 91 Pac. 603.
Georgia. Butler v. Tifton, T. & G. Ry. Co., 121 Ga. 817, 49 S. E. 763.
Illinois. Chicago, etc., Bank v. Trust Co., 190 111. 404, 83 Am. St. Rep. 138, 60 N. E. 5S6 [affirming, 92 111. App. 366].
Indiana, State, ex rel., v. Common Council, 138 Ind. 455. 37 N. E. 1041.
Kentucky. Katterjohn v. Nahm (Ky.), 106 S. W. 1179, 32 Ky. Law Rep. 727.
Maine. Bradstreet v. Rich, 72 Me. 233; Bradstreet v. Rich, 74 Me. 303.
New York. Hicks v. Assurance Co., 162 N. Y. 284, 48 L. R. A. 424, 56 N. E. 743.
Oregon. Spande v. Indemnity Co., 61 Or. 220, 117 Pac. 973.
Virginia. Cary v. Holt's Executors, . 120 Va. 261, 91 S. E. 188.
2 Continental Bank & Trust Co. v. Times Publishing Co., 142 La. 209, L. R. A. 19I8B, 632. 76 So. 612.
3 Donlon v. Southern P. Co., 151 Cal. 763, 11 L. R. A. (N.S.) 811, 91 Pac. 603.
4 Butler v. Tifton, T. & G. Ry. Co., 121 Ga. 817, 49 S. E. 763.
5 Cary v. Holt's Executors, 120 Va. 261, 91 S. E. 188.
6 Howe v. Schmidt, 151 Cal. 436, 90 Pac. 1056.
It is not necessary that the writing thus incorporated should be signed.9 Thus a reference to specifications may incorporate them.10 So in a contract to paint certain houses "according to the annexed specifications," a letter showing the kind of paint, the quality, and the manner of its application may be "specifications."11
The contract between a contractor and a subcontractor may adopt by reference the original contract between the principal contractor and his employer.12 If the specific provisions of the contract between the contractor and the subcontractor in such case are inconsistent with the provisions of the contract between the principal contractor and his employer, the provisions of the contract between the contractor and the subcontractor control.13 So a reference to an unsigned bill of sale,14 or to a blank unsigned warranty on the back of the contract,15 or a provision that the contract is to be performed according to the city ordinances,16 in each case incorporates such unsigned instrument into the contract. So an ambiguous reference in a later contract to an earlier one may be explained by the contents of such earlier one.17
7 Htcks v. Assurance Co., 162 N. Y. 284, 48 L. R. A. 424, 56 N. E. 743.
8 Peabody v. Dewey, 1.53 111. 657, 27 L. R. A. 322, 39 N. E. 977 (such as a provision for payment in gold).
9 White v. McLaren, 151 Mass. 553, 24 N. E. 911; Coe vv Tough, 116 N. Y. 273, 22 N. E. 550.
10 Lake View v. MacRitchie, 134 111. 203, 25 N. E. 663; Katterjohn v. Nahm (Ky.), 106 S. W. 1179, 32 Ky. Law Rep. 727; White v. McLaren, 151 Mass. 553, 24 N. E. 911; Watson v. O'Neill, 14 Mont. 197, 35 Pac. 1064.
See also, Cleveland, C. C. & St. L. Ry. Co. v. Moore, 170 Ind. 328, 82 N. E. 52 [rehearing denied, Cleveland, C. C. & St. L. Ry. Co. v. Moore, 170 Ind. 328, 84 N. E. 540].
11 McGeragle v. Broemel. 53 N. J. D 59, 20 Atl. 857.
13 Fire-Proofing Co. v. Construction Co., 87 O. S. 428, 101 N. E. 348.
14 Coe v. Tough, 116 N. Y. 273, 22 N. E. 550.
15 Grieb v. Cole, 60 Mich. 397, 1 Am. St. Rep. 533, 27 N. W. 579.
16 Philadelphia v. Jewell, 135 Pa. St. 329, 19 Atl. 947, 20 Atl. 281. (Hence it incorporates an ordinance requiring the work to be finished in two years.)
17 Mjones v. Bank, 45 Minn. 335, 47 N. W. 1072.
In accordance with the doctrine of offer and acceptance,18 such writing can be considered a part of the contract only if communicated to the adversary party.19 If a contract incorporates another writing by reference, such other writing must be offered in evidence to prove the entire contract which incorporates it.20