3 Whitney v. Emmett, Baldwin, 316.
4 Co. Litt. 42, 183, against the grantor; because a conveyance by lease and release might pass a leasehold interest; and because, unless this construction were given, the defendant would be enabled, after a long interval of time, to invalidate his own conveyance, for the purpose of obtaining an unjust possession.1 So, also, in case of guaranties, if there be any doubt, the contract will be construed most strictly against the party who becomes bound.2 So, also, if the inducement or proposition upon which'a contract is founded be ambiguously stated by one party, so as to operate as a surprise upon the other party, such statement will be construed in favor of the party deceived, although the deception be unintentional; for, in such case, the party affording a ground of mistake should bear the responsibility. Thus, if a carrier give two different notices, containing different limitations of his responsibility, in case of a loss of goods, he is bound by that which is least beneficial to himself.3
§ 815. The same rule also applies to cases where, by the terms of a contract, an election is given to either party of one of two several things. In such case, the person who is to do the first act has the election; and that person will be the promisor or promisee, according to the nature of the agreement. Whenever, therefore, the promisee has the election, the contract will be construed in his favor. Thus, if a testator, by his will, should give to a certain legatee an absolute legacy of ten thousand dollars, or an annuity of one thousand dollars, during his life, he might elect whichever he pleased. Or, if a man convey two acres, one for life, and the other in fee, the grantee would have the election to take either one or the other in fee.4 So, also, if a proposition be in the alternative ; or if an instrument be so drawn that it will bear two interpretations, the party to whom the proposition is made, or to whom the instrument is given, has the election,1 - as, for instance, where an instrument is so drawn that it may be considered either as a bill of exchange or as a promissory note, the holder may treat it as either.2
1 Doe v. Williams, 1 H. Bl. 25-27. Under an agreement to sell and convey land with a good title, the purchaser is not entitled to a warranty deed. Kyle v. Kavanagh, 103 Mass. 356 (1869).
2 Hargreave v. Smee, 6 Bing. 244; 3 Moo. & P. 573; Evans v. Whyle, 3 Moo. & P. 136 ; Boll v. Bruen, 1 How. 169.
3 Munn v. Baker, 2 Stark. 255.
4 Bac. Abr. Election, B.; Com. Dig. Election, A.; 2 Roper on Legacies, by White, ch. 23, p. 480-578.
§ 816. But if the person, by his own wrong or default, lose his election,- as if he be bound, in the alternative, to do one of two things by a certain day, and he suffer the day to pass, without making an election by performing one or the other, the other party may elect which he will demand.3 Thus, where, by the terms of a contract, the party agreed to pay six hundred dollars for a patent-right, at the end of twelve months, or to account for the profits, and he did neither; it was held that the other party might enforce the payment of the six hundred dollars, although such sum exceeded the actual profits.4
§ 817. The mere omission of the party having the election to perform one alternative may, in some cases, operate as an election of the other. Thus, if goods be sold on a credit of six or nine months, and the purchaser do not pay when six months have elapsed, it will be considered as an election to take nine months' credit.5 If, however, the contract had been to give notes for two months at the end of three months, it would be otherwise, and the general rule would prevail.6
1 Dann v. Spurrier, 3 Bos. & Pul. 399, 402; 7 Ves. 231; Doe v. Dixon, 9 East, 15. See, however, Goodright v. Richardson, 3 T. R. 462; Edis v. Bury, 6 B. & C. 433; 9 Dowl. & Ryl. 492; 2 C. & P. 559.
2 Edis v. Bury, 6 B. & C. 433; Miller v. Thompson, 4 Scott, N. R. 204; Block v. Bell, 1 Mood. & Rob. 149.
3 Com. Dig. Election, A.; Co. Litt. 145 a; Bac. Abr. Election, B.
4 M'Nitt v. Clark, 7 Johns. 465; More v. Morecomb, Cro. Eliz. 864; Abbot v. Rookwood, Cro. Jac. 594; 24 Am. Jur. 15; Stephens v. Howe, 34 N. Y. Superior Ct. Rep. 133 (1873).
5 Price v. Nixon, 5 Taunt. 338.
6 Mussen v. Price, 4 East, 147; Brooke v. White, 1 Bos. & Pul. N. R. 330; Cothay v. Murray, 1 Camp. 335.
The following rules, laid down by Mr. Justice Story, in an article written by him on Law, Legislation, and Codes, for the Encyclopaedia Americana, relate to the interpretation of statutes, but as they apply generally to the interpretation of contracts, they may not be without interest in this place. "The fundamental maxim of the common law in the interpretation of statutes or positive laws is, that the intention of the legislature is to be followed. This intention is to be gathered from the words, the context, the
§ 818. Another well-known rule of construction is, that the construction of written instruments is always a question subject-matter, the effects and consequences, and the spirit or reason of the law. But the spirit and reason are to be ascertained, not from vague conjecture, but from the motives and language apparent on the face of the law. 1. In respect to words, they are to be understood in their ordinary and natural sense, in their popular meaning and common use, without a strict regard to grammatical propriety or nice criticism. But the ordinary sense may be departed from if the context or connection clearly requires it; and then such a sense belonging to the words is to be adopted as best suits the context. 2. Again, terms of art and technical words are to be understood in the sense which they have received in the art or science to which they belong. 3. If words have different meanings, and are capable of a wider or narrower sense in the given connection, that is to be adopted which best suits the apparent intention of the legislature, from the scope or provisions of the law. 4. And this leads us to remark, that the context must often be consulted, in order to arrive at a just conclusion as to the intent of the legislature. The true sense in which particular words are used in a particular passage may be often determined by comparing it with other passages and sentences, when there is any ambiguity, or intricacy, or doubt, as to its meaning. 5. And the professed objects of the legislature in making the law often afford an excellent key to unlock its meaning. Hence resort is often had to the preamble of a statute, which-usually contains the motives of passing it, in order to explain the meaning, especially where ambiguous phrases are used. 6. For the same purpose the subject-matter of the law is taken into consideration; for the words must necessarily be understood to have regard thereto, and to have a larger or narrower meaning, according as the subject-matter requires. It cannot be presumed that the words of the legislature were designedly used in a manner repugnant to the subject-matter. 7. The effects and consequences must also be taken into consideration. If the effects and consequences of a particular construction would be absurd, and apparently repugnant to any legislative intention deducible from the objects or context of the statute, and another construction can be adopted which harmonizes with the general design, the latter is to be followed. But in all such cases where the effects and consequences are regarded, they are not permitted to destroy the legislative enactment, or to repeal it, but simply to expound it. If, therefore, the legislature has clearly expressed its will, that is to be followed, let the effects and consequences be what they may. But general expressions, and loose language, are never interpreted so as to include cases which manifestly could not have been in the contemplation of the legislature. 8. The reason and spirit of the law are also regarded; but this is always in subordination to the words, and not to control the natural and fair interpretation of them. In short, the spirit and the reason are derived principally from examining the whole text, and not a single passage; from a close survey of all the other means of inter* of law for the court, and not of fact for the jury.1 And so is the construction of oral contracts, where the terms used are pretation, and not from mere private reasoning as to what a wise or beneficent legislature might or might not intend. Cases, indeed, may readily be put, which are so extreme that it would be difficult to believe that any rational legislature could intend what their words are capable of including. But these cases furnish little ground for practical reasoning, and are exactly of that class, where, from the generality of the words, they are capable of contraction or extension, according to the real objects of the legislature. These objects once ascertained, the difficulty vanishes. This natural and sometimes necessary limitation upon the use of words in a law we often call construing them by their equity. In reality nothing more is meant than that they are construed in their mildest, and not in their harshest sense, it being open to adopt either. 9. For the same purpose, in the common law, regard is often had to antecedent and subsequent statutes upon the same subject; for being in pari materia, it is natural to suppose that the legislature had them all in their view in the last enactment, and that the sense which best harmonizes with the whole is the true sense. 10. For the like reason words and phrases in a statute, the meaning of which has been ascertained (especially a statute on the same subject), are, when used in a subsequent statute, presumed to be used in the same sense, unless something occurs in it to repel the presumption. 11. As a corollary from the two last rules, it is a maxim of the common law, that all the statutes upon the same subject, or having the same object, are to be construed together as one statute; and then every part is to be taken into consideration. 12. Another rule is, to construe a statute as a whole, so as, if possible, or as nearly as possible, to give effect, and reasonable effect, to every clause, sentence, provision, and even word. Nothing is to be rejected as void, superfluous, or insignificant, if a proper place and use can be assigned to it. 13. If a reservation in a statute be utterly repugnant to the purview of it, the reservation is to be rejected; if the preamble and the enacting clauses are different, the latter are to be followed. But the reservation may qualify the purview, if consistent with it, and the preamble control the generality of expression of the enacting clauses, if it gives a complete and satisfactory exposition of the apparent legislative intention. 14. The common law is also regarded, as it stood antecedently to the statute, not only to explain terms, but to point out the nature of the mischief, and the nature of the remedy, and thus to furnish a guide to assist in the interpretation. In all cases of a doubtful nature the common law will prevail, and the statute not be construed to repeal it. 15. Hence, where a remedy is given by statute clearly ascertained, which latter fact is for the jury, when there is a conflict of testimony.1 But if a contract is to be for a particular case, it is not construed to extend so as to alter the common law in other cases. 16. Remedial statutes are construed liberally; that is, the words are construed in their largest sense, so far as the context permits and the mischief to be provided against justifies. By remedial statutes we understand those whose object is to redress grievances and injuries to persons, or personal rights and property in civil cases. Thus, statutes made to suppress frauds, to prevent nuisances, to secure the enjoyment of private rights, are deemed remedial. 17. So, statutes are to be construed liberally which concern the public good; such as statutes for the advancement of learning, for the maintenance of religion, for the support of the poor, for the institution of charities. 18. The general rule is, that the sovereign or government is not included within the purview of the general words of a statute, unless named. Thus, a statute respecting all persons generally is understood not to include the king. He must be specially named. But, nevertheless, in statutes made for the public good, which are construed liberally, the king, although not named, is often included by implication. 19. On the other hand, penal statutes, and statutes for the punishment of crimes, are always construed strictly. The words are construed most favorably for the citizens and subjects. If they admit of two senses, each of which may well satisfy the intention of the legislature, that construction is always adopted which is the most lenient. No case is ever punishable which is not completely within the words of the statute, whatever may be its enormity. No language is ever strained to impute guilt. If the words are doubtful, that is a defence to the accused ; and he is entitled, in such a case, to the most narrow exposition of the terms. This rule pervades the whole criminal jurisprudence of the common law, and is never departed from under any circumstances. It is the great leading principle of that jurisprudence, that men are not to be entangled in the guilt of crimes upon ambiguous expressions. But it is not to be understood that the statute is to be construed so as to evade its fair operation. It is to have a reasonable exposition, according to its terms; and, though penal, it is not to be deemed odious. 20. Private statutes, also, generally receive a strict construction; for they are passed at the suggestion of the party interested, and are supposed to use his language. 21. Statutes conferring a new jurisdiction, and especially a summary jurisdiction contrary to the general course of the common law, are construed strictly. They are deemed to be in derogation of the common rights and liberties of the people under the common law, and are on that account jealously expounded. There are many other rules, of a more special character, for the construction of statutes, which the extreme solicitude of the common law to introduce certainty, and to limit the dismade out partly by written documents and partly by oral evidence, the whole becomes a question for the jury.1 cretion of judges, has incorporated into its maxims. But they are too numerous to be dwelt upon in this place. They all, however, point to one great object, - certainty and uniformity of interpretation; and no court would now be bold enough, or rash enough, to gainsay or discredit them. On the contrary, it is the pride of our judicial tribunals constantly to resort to them for the purpose of regulating the necessary exercise of discretion in construing new enactments."