1 Sansom v. Bell, 2 Camp. 39; Com. Dig. Parol, A. 19; Watson ». Boylston, 5 Mass. 411.
2 Bell y. Bruen, 1 How. 169.
3 Robertson v. French, 4 East, 135.
4 Astor v. The Union Insurance Co., 7 Cow. 202.
5 Peisch v. Dickson, 1 Mason, 11, 12. 6 Smith v. Wilson, 3 B. & Ad. 728.
7 Taylor v. Briggs, 2 C. & P. 525.
8 Coit v. Commercial Ins. Co., 7 Johns. 385.
9 Sleght v. Hartshorne, 2 Johns. 531.
"level,"1 "a pack of wool," as well as the meaning of the phrase "duly honored," when applied to a bill of exchange,2 have been interpreted by usage and custom so as to receive a peculiar construction, differing from their ordinary meaning.3 So, also, evidence has been admitted to show that by mercantile usage "mess pork of Scott & Co." meant pork manufactured by Scott & Co.;4 that "rice " is not considered as corn;5 and that "provisions" were included in a policy of insurance under the name "furniture." 6 The term "month," when used in contracts or deeds, must be construed, where the parties have not themselves given to it a definition, and there is no legislative provision on the subject, to mean calendar, and not lunar months.7
§ 792. So, also, the terms in a policy of insurance are to be construed according to the technical meaning which they have acquired by usage; for, otherwise, they would be absurd and contradictory. But unless they are technical, they come within the general rule.8 And in such case the court will define them.
1 Clayton v. Gregson, 5 Ad. & El. 302.
2 Chaurand v. Angerstein, Peake, 43. See also Peisch v. Dickson, 1 Mason, 11, 12; Doe v. Benson, 4 B. & Al. 588; U. S. v. Breed, 1 Sumner, 159; Taylor v. Briggs, 2 C. & P. 525; Lucas v. Groning, 7 Taunt. 164; Macbeath v. Haldimand, 1 T. R. 172; Neilson v. Harford, 8 M. & W. 806; Morrell v. Frith, 3 M. & W. 402.
3 See also Story on Agency, § 62, and note; ib. § 74, and note; Hogg v. Snaith, 1 Taunt. 347; Ekins v. Macklish, ^mbler, 184, 185; Murray v. East India Co., 5 B. & Al. 204-210; Lucas v. Groning, 7 Taunt. 167; Morrell v. Frith, 3 M. & W. 406; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. See also Hone v. Mutual Ins. Co., 1 Sandf. 137; Eaton v. Smith, 20 Pick. 150.
4 Powell v. Horton, 2 Bing. N. C. 668.
5 Scott v. BourdilHon, 2 Bos. & Pul. N. R. 213.
6 Brough v. Whitmore, 4 T. R. 206.
7 Sheets v. Selden, 2 Wall. 178 (1864).
8 Eaton v. Smith, 20 Pick. 150; Robertson v. French, 4 East, 135. In this case, Lord Ellenborough said: "In the course of the argument it seems to have been assumed that some peculiar rules of construction apply to the terms of a policy of assurance which are not equally applicable to the terms of other instruments and in all other cases: it is therefore proper to state upon this head, that the same rule of construction which applies to all other instruments applies equally to this instrument of a policy of insurancewhether it had such a peculiar meaning in the trade was properly a question for the jury to determine; but whether there was a complete acceptance of the offer was a question for ihe court. Where, however, the meaning of the words as words is clear, the construction of the contract is for the court solely.1 The terms of an oral contract, when clearly proved, and intelligible and explicit, are to be construed by the court, and not by the jury.2 The construction of a written document is a matter of law, where the meaning is to be ascertained from the document itself; but, where the meaning can be understood only from extrinsic facts, the construction is generally a question of fact for the jury.3
§ 793. Where words which are technical or mercantile, belonging to any art, trade, course of dealing, or class of peonamely, that it is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words; or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. The only difference between policies of assurance and other instruments in this respect, is, that the greater part of the printed language of them, being invariable and uniform, has acquired from use and practice a known and definite meaning, and that the words superadded in writing (subject indeed always to be governed in point of construction by the language and terms with which they are accompanied) are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects." See also Child v. Sun Mut. Ins. Co., 3 Sandf. 26; Whitmore v. Coats, 14 Mo. 9; Evans v. Pratt, 3 Man. & Grang. 759; Vail v. Rice, 1 Seld. 155; Barton v. McKelway, 2 Zab. 174; Macy v. Whaling Ins. Co., 9 Met. 354. In Hutton v. Warren, 1 M. & W. 475, Parke, B., said: "It has long been settled, that, in commercial transactions, extrinsic evidence of custom and usasre is admissible to annex incidents to written contracts, in matters with respect to which they are silent. The same rule has also been applied to contracts in other transactions of life, in which known usages have been established and prevailed; and this has been done upon the principle of presumption that, in such transactions, the parties did not mean to express in writing the whole of the contract, by which they intended to be bound, but a contract with reference to those known usages. Whether such a relaxation of the strictness of the common law was wisely applied, where formal instruments have been entered into, and particularly leases under seal, may well be doubted; but the contrary has been established by such authority, and the relations between landlord and tenant have been so long regulated upon the supposition that all customary obligations, not altered by the contract, are to remain in force, that it is too late to pursue a contrary course; and it would be productive of much inconvenience if this practice were now to be disturbed." And in Brough v. Whitmore, 4 T. R. 210, Lord Kenyon said: "I remember it was said many years ago, that if Lombard Street had not given a construction to policies of insurance, a declaration on a policy would have been bad, on general demurrer, but the ple, are introduced into a contract, their peculiar meaning is a question of fact to be determined by a jury and to be gathered from experts; but their meaning being determined, their legal bearing is a matter of law for the court to decide.1 Thus, where an offer was made by letter, to sell a quantity of "good barley," and the letter of reply referring to the offer, said, "which offer we accept, expecting you will give us fine barley, and good weight," it was held, that the contract was to be construed according to the mercantile meaning of the term, and uniform practice of merchants and underwriters had rendered them intelligible." See also Johnson v. Johnson, 3 Bos. & Pul. 167, 168. See also Story on Agency, 62, and note; ib. § 74, and note; Hogg v. Snaith, 1 Taunt. 347; Ekins v. Macklish, Ambler, 184, 185; Murray v. East India Co., 5 B. & Al. 204, 210; Lucas v. Groning, 7 Taunt. 167; Morrell v. Frith, 3M.&W. 406; Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. 1 In Neilson v. Harford, 8 M. & W. 806, Baron Parke said: "The construction of all written instruments belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury: and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error; but a misconstruction by the jury cannot be set right at all effectually." Mr. Justice Shaw, in Eaton v. Smith, 20 Pick. 150, lays down the rule thus: "When a new and unusual word is used in a contractor when a word is used in a technical or peculiar sense, as applicable to any trade or branch of business, or to any particular class of people, it is proper to receive evidence of usage, to explain and illustrate it, and that evidence is to be considered by the jury; and the province of the court will then be, to instruct the jury what will be the legal effect of the contract or instrument, as they shall find the meaning of the word, modified or explained by the usage. But when no new word is used, or when an old word, having an established place in the language, is not apparently used in any new, technical, or peculiar sense, it is the province of the court to put a construction upon the written contracts and agreements of parties, according to the established use of language, as applied to the subject-matter, and modified by the whole instrument, or by existing circumstances." See also Parmiter v. Coupland, 6 M. & W. 108; Pierce v. the State, 13 N. H. 536-562; Morrell v. Frith, 3 M. & W. 402; Perth Amboy Manuf. Co. v. Condit, 1 Zab. 659; Wason v. Rowe, 16 Vt. 525.