dence of the usage or course of trade at the place where the contract is to be carried into effect, is admissible to explain the meaning and remove the doubt.a

The law places more reliance upon written than oral testimony; and it is an inflexible rule that parol evidence is not admissible to supply or contradict, enlarge or vary, the words of a contract in writing. That would be the substitution of parol to written evidence under the hand of the party, and it would lead to uncertainty, error, and fraud.b Parol evidence is received, when it goes, not to contradict the terms of the writing, but to defeat the whole contract, as being fraudulent or illegal ; for it then shows, that the instrument never had any valid operation ; and this rule is supported on grounds of policy and necessity. So, when a contract is reduced to writing, all matters of negotiation and discussion on the subject, antecedent to, and dehors the writing, are excluded, as being merged in the instrument. In the case, however, of a latent ambiguity, or one not appearing on the face of the instrument, but arising entirely in the application of itas when the person or object in view is not designated with precision—the maxim fitly applies, that ambiguitas verborum latens verificatione suppletur ; nam quod ex facto oritur ambiguum verificatione facti tollitur.d

· Webb v. Plummer, 2 Barnw. f Ald. 746. Coit v. Com. Ins. Co., 7 Johns. Rep. 385. Gibbon v. Young, 6 Taunt. Rep. 261. Bottomley v. Forbes, 5 Bingham, N. C. 121. Ir technical terms are employed, they are to be taken in a technical sense-verba artis ex arte.

o Piersons v. Hooker, 3 Johns. Rep. 68. Jackson v. Foster, 12 Ibid. 488.

e Abbott, Ch. J., in Kain v. Dodds, 2 Barni. & Cress. 627. Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 273. Dean v. Mason, 4 Conn. Rep. 428.

Lord Bacon's maxim, Regula, 23. Cole v. Wendel, 8 Johns. R. 90. It is a well settled rule, and one which has been acknowledged in all the cases on the subject, from Cheyney's case, 5 Co. 68, down to this day, that parol evidence is inadmissible to supply or contradict, enlarge or vary the words of a will, or explain the intention of the testator, except in a case of a latent ambiguity arising dehors the will, as to the person or subject meant to be described, or to rebut a resulting trust. Mann v. Executors o Dig. 45. 1. 99. Ibid. 50. 17. 9. 56. However if the deed from its ambiguity creates a doubt, the construction is to be favorable to the grantee, and there is no distinction, in this respect, between the language of the grant itself, and that of any exception or reservation contained in it. Ch. J. Parker cites the authorities and enforces the rule in his able decision in Cocheco Man. Co. v. Whittier, 10 N. H. Rep. 305.

The rule that the language of a deed or contract is to be taken most strongly against the party using it, (verba ambigua fortius accipiuntur contra proferentem,) though it be a rule, according to Lord Bacon, “ drawn out of the depth of reason,” applies only to cases of ambiguity in the words, or where the exposition is requisite to give them lawful effect. It is a rule of strictness and rigour,

and not to be resorted to but where other rules of 557 exposition fajl.a The *modern and more reasona

ble practice is, to give to the language its just sense, and to search for the precise meaning, and one requisite to give due and fair effect to the contract, without adopt. ing either the rule of a rigid or of an indulgent construction. The Roman law maxims of interpretation in such cases were, that in dubiis benigniora præferenda sunt. In obscuris quod minimum est, sequimur-secundum promissorem interpretamur.b The true principle of sound ethics is, to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it. C

of Mann, 1 Johns. Ch. R. 234. Doe v. Chichester, 4 Dow's P. C. 65. 96. Hand v. Hoffman, 3 Halsted's R. 71. The rule as to the ambiguity ap. plies equally to deeds and to all written instruments. Ibid. Meres v. Ansell, 3 Wils. Rep. 275. The maxim of Lord Bacon, that ambiguitas pa. tens is never helped by averment is too general. It is subject to qualifications, and this is sufficiently shown in the learned decision, in Fish v. Hubbard's Administrators, 21 Wendell, 651. In extrinsic cases parol evi. dence is often adınitted to explain a patent ambiguity. Duer on Insurance, vol. i. 170. At the end of the Treatise of Mr. Wagram on the adoption of Extrinsic Evidence, there are observations on the cases relative to Lord Bacon's rule concerning latent and patent ambiguities.

- Bacon's Marims of the Law, No. 3.

© Every treaty, says Vattel, should be interpreted as the parties under

If the object of the contract be present, an error in the name does not vitiate it; as, if A. gives a horse to C., (D. being present,) and says to him, (C., “ D., take this horse," the gift is good notwithstanding a mistake in the name ; for the presence of the grantee gives a higher degree of certainty to the identity of the person than the mention of his name. So, if the error consists in the demonstration or reference, and not in the name of the thing—as if A. grant to B. his lot of land called Dale, in the parish of B., in the county of D., and the lot lies in the county of H., yet the falsity of the addition does not affect the efficacy of the contract. Many other cases to the like effect are put by Lord Bacon, and given by way of illustration of the rule, that præsentia corporis tollit er. rorem nominis, et veritas nominis tollit errorem demonstrationis.a

stood it, when the act was prepared and accepted. Droit des Gens, b. 2. ch. 17, sec. 268. Vide supra, vol. i. 460, note. i Bacon's Maxims of the Law, Reg. 25. Smith v. Smith, 1 Edw. Ch. Rep. 189. Doe y. Cranstoun, 7 Mees. J. W. 1.



BAILMENT is a delivery of goods in trust, upon a contract expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.a

There are five species of bailment, according to Sir William Jones, in his correction of Lord Holt's enumeration of the different sorts of bailments.

I. Depositum, or a naked deposit without reward.
II. Mandatum, or commission, which is gratuitous, and

by which the mandatory undertakes to do some act

about the thing bailed. III. Commodatum, or loan for use without pay, and when

the thing is to be restored in specie. IV. A pledge, as when a thing is bailed to a creditor as

a security for a debt. *559 *V. Locatio, or hiring for a reward.b

* 2 Blacks. Com. 452. Pothier, Trailé du Contrat de Dépôt, No. 1. Mr. Justice Story, in his Commentaries on the Law of Bailments, speaks of a consignment to a factor, as being a bailment for sale ; and he applies the term bailment to cases in which no return or delivery, or re-delivery to the owner or his agent, is contemplated. But, I apprehend, this is extending the definition of the term beyond the ordinary acceptation of it in the En. glish law.

5 Jones' Essay on the Law of Bailments, 27, 1st edit. 1790. Bailments havo been reduced, by a late master hand, to three kinds : 1. Those in which the trust is for the benefit of the bailor, and which embrace depo. sits and mandates. 2. Those in which the trust is for the benefit of the

I shall examine each of them in their order.

*I. Of depositum.

560* This is a bailment of goods to be kept for the bail. or, and returned upon demand, without a recompense; and as the bailee or depositary derives no benefit from the bailment, he is to keep them with reasonable care ; and he is responsible, if there be no special undertaking to the contrary, only for gross neglect, or for a violation of good faith. As a general rule, he is not answerable for mere neglect, if the goods be injured or destroyed while in his custody, if he takes no better care of his own goods, of the like value and under the like circumstances, and they be also spoiled or destroyed.b Mere neglect, in such a case, is not gross neglect; since the latter is tantamount in the mischief it produces to a breach of good faith, and it usually implies it; but whether fraud does or does not, in point of fact, accompany gross neglect in a depositary, he is still responsible for it in law. Gross neglect, as was observed by Ch. J. Parker,c bears so near a resemblance to fraud, as to be equivalent to it in its effect upon contracts. Gross neglect is the want of that

bailee, as the commodatum, or gratuitous loan for use. 3. Those in which the trust is for the benefit of both parties, as pledges or pawns, and hiring and letting to hire. Story's Comm. on Bailments, 3.

Quia nulla Utititas ejus versatur apud quem depositur, merito dolus prestatur solus. Dig. 13. 6. 5. Foster v. The Essex Bank, 17 Mass. R. 479. Lafarge v. Morgan, 11 Martin's Louis. R. 462. Doorman y. Jenkins, 4 Neville of Manning, 170. In this last case it was held, that what would amount to gross negligence, was a question for a jury. The law raises an assumpsit in all cases, even in that of a gratuitous bailment, that the bailee will keep and deliver, safely and securely, which means due care in all cases, but the decree of care varies according to the nature of the bailment, and becomes stringent in cases of carriers and bailees for hire. Ross v. Hill, C. B. April, 1846. N. Y. Legal Observer for August, 1846.

b See Foster v. Essex Bank, infra, p. 563, n. d.

17 Mass. Rep. 500. VOL. II.


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