§ 804. So, also, if a contract be to be performed partly in one country, and partly in another country, it has a double operation, and each portion is to be interpreted according to the laws of the country where it is to be performed.5 Thus, where a bill of lading is made of goods, some of which are to be delivered at one port, and some at another, in different countries, the bill of lading is to be construed in reference to the portion delivered at each port, according to the laws of that port.6 So, also, the same rule applies to contracts of
1 Story, Conflict of Laws, § 282; Coolidge v. Poor, 15 Mass. 427'; Con-sequa v. Fanning, 3 Johns. Ch. 587, 610; Bradford v. Farrand, 13 Mass. 18; Milne v. Moreton, 6 Binn. 353, 359, 365; Pope v. Nickerson, 3 Story, 484.
2 Story, Conflict of Laws, § 272 a; Kearney v. King, 2 B. & Al. 301; Sprowle v. Legge, 1 B. & C. 16.
3 Whiston v. Stodder, 8 Martin, 95; Malpica v. McKown, 1 La. 248, 255. The Lord Chancellor, in the late case of Pattison v. Mills, in the House of Lords, said: "IfI, residing in England, send down my agent to Scotland, and he makes contracts for me there, it is the same as if I myself went there and made them." Pattison v. Mills, 1 Dow & Clark, 342; Albion F. & L. Ins. Co. v. Mills, 3 Wils. & Shaw, 218, 233; 3 Burge, Comm, on Col. and For. Law. pt. 2, ch. 20, p. 753.
4 Story, Conflict of Laws, § 291 to 297, and cases cited; 2 Kent, Comm. 460; Robinson v. Bland, 2 Burr. 1077; Ekins v. East India Co., 1 P. Wms. 396; Fanning v. Consequa, 17 Johns. 511.
5 Pope v. Nickerson, 3 Story, 485.
6 Ibid. affreightment and shipment, some portions of which are to be performed at the home port, some at the foreign port, and some at the return port.1
§ 805. Again, a contract is to be construed in reference to the time when it was made; and to contemporaneous laws and usages. The state of the country, the manners of society, and the customs, which are a fluctuating law, pervading and modifying contracts, are implied in almost every transaction, and therefore will often elucidate questions which, standing alone, would be scarcely intelligible. Ancient grants are, therefore, to be expounded according to the law of the time when they where made.2 Thus, where a proprietary grant was made in 1680 of "a piece of land below high-water mark, to set a shop upon, not exceeding forty feet in width," it was construed to extend to low-water mark; and the court said: "Whatever may be the construction of analogous words in a recent conveyance, made in terms of precision and accuracy, and when considerable value is attached to flats in the beds of rivers, creeks, and coves, it is obvious, that to apply rigid rules of construction to transactions which took place early after the settlement of the country, when conveyancing was little understood, and when the mud of a river or harbor was supposed to be worth nothing, would be often attended with injustice, and, in many instances, subvert the titles to property of almost incalculable value."3 Usage, however, or contemporaneous exposition, is not to be called in aid, when the language of a contract is clear and precise, but only where it is equivocal or doubtful; as in the construction of ancient statutes and charters, and other instruments, the meaning of which is obscure.1
1 Pope v. Nickerson, 3 Story, 485.
2 Co. Litt. 8 b; Amb. 288. "Every grant shall be expounded as the intent was at the time of the grant; as if I grant an annuity to J. S. until he be promoted to a competent benefice, and at the time of the grant he was but a mean person, and afterward is made an archdeacon, yet if I offer him a competent benefice, according to his estate at the time of the grant, the annuity doth cease." Per Wray, C. J., Gro. Eliz. 35.
3 Adams v. Frothingham, 3 Mass. 360. See also Att'y-Gen. v. Parker, 3 Atk. 577; Withnell v. Gartham, 6 T. R. 388; Weld v. Hornby, 7 East, 199; Codman v. Winslow, 10 Mass. 149; Branch's Maxims, Hening's ed. 30.
§ 806. The exposition is to be upon the whole contract, and not upon disjointed parts taken separately.2 Several instruments made at the same time are to be construed together as parts of one contract, where it is necessary to carry into effect the agreement and intention of the parties.3 The object of the contract, and the intention of the parties, is to be gathered from a consideration of all the parts of the agreement, and one clause is to be interpreted by another.1 Ex antecedentibus et consequentibus fit optima interpretatio; nam turpis est pars, quoa cum suo toto non convenit. Thus, where the vendor of an estate warranted it against himself and his heirs, and covenanted that he, "notwithstanding any thing by him done to the contrary," was seised lawfully and absolutely in fee-simple, and that he had a good right and full power to convey; and the breach of covenant was, that other persons were rightfully entitled to the said land, to whom he had been obliged to become tenant, and had thus lost his fee-simple; it was held, that the general covenant of good right, lawful title, etc, was either a part of the preceding special covenant, - or if not, that it was qualified by the other special covenants against the acts of himself and his heirs only. Mr. Justice Buller, in this case, said: "We do not do justice to the parties, unless we look to the whole deed, and infer from that their real intention. The defendant has expressly told us in one part of the deed, that he means to covenant against his own acts; and are we to say that he has in the same breath covenanted against the acts of all the world?"2 So, also, a devise of "the farm called Trogue's farm, now in the occupation of C," was held to pass the whole farm, though C. only occupied a portion of it.3 So, also, where a lease was made of "all that part of Blenheim park, situate in the county of Oxford, now in the occupation of one
1 Iggulden v. May, 2 Bos. &Pul. N. R. 449; s. c. 7 East, 237; and before Lord Eldon, 9 Ves. 325. See also Tritton v. Foote, 2 Cox, 174; Rubery v. Jervoise, 1 T. R. 229; Livingston v. Ten Broeck, 16 Johns. 23; Peake on Evid. 119, 2d ed.; 3 Stark. Evid. 1031; 1 Phil. Evid. 1st Am. ed. 419, 420; Cortelyou v. Van Brundt, 2 Johns. 357; M'Keen v. Delancy, 5 Cranch, 22; Sheppard v. Gosnold, Vaugh. 169; Rogers v. Goodwin, 2 Mass. 475; Packard v. Richardson, 17 Mass. 144; Stuart v. Laird, 1 Cranch, 299; 1 Kent, Comm. 434, 1st ed.; Blankley v. Winstanley, 3 T. R. 279; The King v. Osbourne, 4 East, 327; Rex v. Varlo, 1 Cowp. 250; Mayor of London ». Long, 1 Camp. 22.