4 Cleaveland v. Smith, 2 Story, 287.
5 Bache v. Proctor, 1 Doug. 382.
Through which there was a private way, having a gate across it, entered into covenants, by indenture, for widening the way, and the following memorandum was subjoined to the indenture: "The gate above mentioned is to be kept up, except by the consent of the parties;"it was holden, that the intent of the parties was, that the gate should be upheld, until, by agreement, it should be taken down; and then, that it was to remain down for ever.1 So, also, a covenant by a lessee not to exercise the trade of a butcher upon the demised premises, was held to be broken by his selling raw meat by retail, although no beasts were slaughtered there; because it was the manifest intention of the lessor to preclude the exercise of the trade in any form, in order to prevent a depreciation in the value of the tenement.2 So, also, where a contract was made in London for the sale of tallow, then at sea, in which it was agreed that if it did not arrive at a particular time the contract should be void; it was held, that the evident understanding was, that it was to arrive at London, and not elsewhere; and, as it did not arrive there, the contract was void.3 So, a contract to employ a person for a year if he can "fill the place satisfactorily "gives the employer the right to discharge him before the end of the year, he (the employer) being the sole judge of the propriety of such action.4
§ 775. This rule does not, of course, apply to those cases where there was a fraudulent intention, or where one party purposely misled the other; for, under such circumstances, to give effect to the real intention, would be to reward dishonesty. The undertaking of each must be construed in that sense in which he supposed it to be understood by the other. Thus, where a note was made by a debtor, and given by him to his creditor, "for £20, borrowed and received," "which I promise never to pay; " it was held to be properly described as a promissory note, on which the maker was liable.1
1 Fowle v. Bigelow, 10 Mass. 379.
2 Doe v. Spry, 1 B. & Al. 617. See also Dormer v. Knight, 1 Taunt. 417; Doe v. Keeling, 1 M. & S. 95.
3 Idle v. Thornton, 3 Camp. 274.
4 Tyler v. Ames, 6 Lans. 280 (1872). See also Huggans v. Fryer, 1 Lans. 276; Chadwick v. Lamb, 29 Barb. 518; Rich v. Milk, 20 lb.616; Hall v. Sampson, 19 How. Pr. 481; Farrell v. Hildreth, 38 Barb. 178.
§ 776. When some of the terms of the agreement contradict the manifest intention, as clearly indicated by the agreement taken as a whole, the intention governs.2 Thus, where the condition of a bond for payment of money was, that the bond should be void if the money was not paid; it was held to be wholly inconsistent with the nature of the bond itself, and was therefore rejected, leaving the bond in full force as a perfect contract.3 So, also, a note or bill of exchange, made payable to the order of a fictitious person, in whose name it is indorsed, will, in favor of a bond fide holder, without notice of the fraud, be held to be payable to the.bearer.4 The same rule applies to cases where an evident mistake has been made in an instrument.5 Thus, an agreement to convey " the Hawkins lot, containing one hundred acres," was held to convey the whole lot set off to Hawkins, and answering to the general description, although it contained one hundred and six acres.6 So, also, where a bond was given, conditioned to pay one hundred pounds, by six equal instalments, on certain specified days, "until the full sum of one pound should be paid," the court allowed the word hundred to be inserted after one, in order to effectuate the evident intention of the parties.7 So, where a certain farm was sufficiently described in a deed to identify it, and was referred to as being lot No. 17, whereas it was not lot No.
1 Simpson v. Vaughan, 2 Atk. 32.
2 A construction that will give an unlimited and customary signification to every part of a contract, is to be preferred. Rolker v. The Great Western Ins. Co., 3 Keyes, 17 (1866).
3 Vernon v. Alsop, T. Raym. 68; 1 Lev. 77; s. c. 1 Sid. 105; Mills v. Wright, 1 Freem. 247. See also Finch's Law, 52; Stockton v. Turner, 7 J. J. Marsh. 192; Gully v. Gully, 1 Hawks, 20; Ayres v. Wilson, 1 Doug. 385; Simpson v. Vaughan, 2 Atk. 32.
4 Gibson v. Minet, 1 H. Bl. 590; Collis v. Emett, 1 H. Bl. 313; Tat-lock v. Harris, 3 T. R. 176; Stone v. Freeland, 1 H. Bl. 316, note.
5 Savile, 71, pi. 147. See Weak v. Escott, 9 Price, 595; Crowley v. Swindles, Vaugh. 173; Ferguson v. Harwood, 7 Cranch, 414; Cleaveland v. Smith, 2 Story, 279.
6 Butterfield v. Cooper, 6 Cow. 481; Stebbins v. Eddy, 4 Mason, 414. 7 Waugh v. Bussell, 5 Taunt. 707.
17, it was held, that such incorrect reference must be rejected, because the lot was sufficiently identified without it, and to give effect thereto would be to invalidate the deed.1 So, also, where a devise is made of a black horse, when the testator has only a white one; or of a freehold estate, when he has only leasehold estates, his will would be interpreted to apply to the white horse, or to the leasehold estates.2
§ 777. But in all such cases it should appear, either that there was a plain mistake of parties in writing out the contract, or that the instrument, taken as a whole, contains within itself ample evidence of the intention of the parties, - for the clear terms of a written contract cannot be contradicted by any external evidence of a different intention, but only explained thereby. Where, from the language of the contract, there can be no uncertainty as to the true meaning of its terms, it is not competent to give evidence to show that a different meaning was intended.8 It is only where the terms are self-contradictory, or doubtful and ambiguous, or contain mistakes, that they are to be warped from their apparent meaning.4 The only exception to this rule would seem to be where the terms of the written agreement are so inconsistent with the manifest intention of the parties, as to operate as an entire nullification of the contract, in which case the terms would be construed so as to give effect to the intention. Thus, in a case before cited, where a bill of exchange was made payable to a fictitious person or order, it was held that, inasmuch as the actual terms would reduce the contract to a mere nullity, it should be construed as payable to bearer, it being impossible to conceive that the parties intended to make an utterly illusory and null agreement; and because, if such were the intention of the makers, it was a fraud.1