affect per sonal the personal estate, and all liabilities chargeable upon it. contractThus covenants which are attached to leasehold estate pass, which ual rights as to benefit and liability, with the personalty, to the representatives, while covenants affecting freehold, as covenants estate, for title in a conveyance of freehold property, pass to the heir or devisee of the realty. on per sonal But performance of such contracts as depend upon the if not depersonal services or skill of the deceased cannot be demanded pendent of his representatives, nor can they insist upon offering such skill or performance. Contracts of personal service expire with either service. of the parties to them: an apprenticeship contract is terminated by the death of the master, and no claim to the Baxter v. services of the apprentice survives to the executor. Burfield, 2 Str. 1266. Nor can executors sue for a breach of contract which involves a purely personal loss. In Chamberlain v. Williamson, 2 M.& S. 403. an executor sued for a breach of promise to marry the deceased. The promise had been broken and the right of action accrued in the lifetime of the testatrix. But the Court held that such an action could not be brought by representatives, since it was not certain that the breach of contract had resulted in damage to the estate. 'Although marriage may be regarded as a temporal advantage to the party as far as respects personal comfort, still it cannot be con- ib. p. 416. sidered as an increase of the transmissible personal estate.' In Finlay v. Chirney, a converse proposition was laid down, 20 Q. B. D. (C. A.) 494. and the Court held that no action would lie against the executors of a man who in his lifetime had broken a promise to marry. The Court would not say that an action might not lie if special damage was proved, but the contract to marry was personal and did not survive to the representatives. Assignment of contractual obligation by bankruptcy. powers: Proceedings in Bankruptcy commence with the filing of Trustee's à petition in the Court of Bankruptcy either by a creditor their exalleging acts of bankruptcy against the debtor or by the tent, and debtor alleging inability to pay his debts. Unless this limits. c. 50. § 52 (5). petition prove unfounded the Court makes a receiving order and appoints an official receiver who takes charge of the debtor's estate and summons a meeting of the creditors. If the creditors decide not to accept a composition, but make the debtor bankrupt, he is adjudged bankrupt and a trustee appointed. To the trustee passes all the property of the bankrupt vested in him at the time of the act of bankruptcy or acquired by him before discharge, and the capacity for taking proceedings in respect of such property; but all that we are concerned with in respect of the rights and liabilities of the trustee is to note that 46 & 47 Vict. (i) where any part of the property of a bankrupt consists of things in action, such things shall be deemed to have been duly assigned to the trustee : (ii) he may, within twelve months of his appointment, Vict. disclaim, and so discharge unprofitable contracts : 46 & 47 Vict. c. 71. § 13. Drake v. Beckham, (iii) he is probably excluded from suing for 'personal 11 M. & W. injuries arising out of breaches of contract, such as contracts to cure or to marry,' even though a consequential damage to the personal estate follows upon the injury to the person.' 319. PART IV. THE INTERPRETATION OF CONTRACT. tation of contract. AFTER considering the elements necessary to the formation Interpreof a contract, and the operation of a contract as regards those who are primarily interested under it, and those to whom interests in it may be assigned, it seems that the next point to be treated is the mode in which a contract is dealt with when it comes before the Courts in litigation. In considering In what the subject the interpretation of contract we require to know how its consists. terms are proved; how far, when proved to exist in writing, they can be modified by evidence extrinsic to that which is written; what rules are adopted for construing the meaning of the terms when fully before the Court. (2) to con The subject then divides itself into rules relating to evi- Rules relating (1) dence and rules relating to construction. Under the first to evihead we have to consider the sources to which we may go for dence and the purpose of ascertaining the expression by the parties of struction. their common intention. Under the second we have to consider the rules which exist for construing that intention from expressions ascertained to have been used. Provinces of Court CHAPTER I. Rules relating to Evidence. Ir a dispute should arise as to the terms of a contract and Jury. made by word of mouth, it is necessary in the first instance to ascertain what was said, and the circumstances under which the supposed contract was formed. These would be questions of fact to be determined by a jury. When a jury has found, as a matter of fact, what the parties said, and that they intended to enter into a contract, it is for the Court to say whether what they have said amounts to a contract, and, if so, what its effect may be. When a man is proved to have made a contract by word of mouth upon See p. 128. certain terms, he cannot be heard to allege that he did not mean what he said. Why oral contracts need not be discussed. The same rule applies to contracts made in writing. When men have put into writing any part of their contract they cannot alter by parol evidence that which they have written. When they have put into writing the whole of their contract they cannot add to or vary it by parol evidence. Contracts wholly oral may, as regards this part of my subject, be dismissed at once. For the proof of a contract made by word of mouth is a part of the general law of evidence; the question whether what was proved to have been said amounts to a valid contract must be answered by reference to the formation of contract: the interpretation of such a contract when proved to have been made may be dealt with presently under the head of rules of construction. matters of All that we are concerned with here is to ascertain the Three circumstances under which extrinsic oral evidence is ad- inquiry. missible in relation to written contracts and contracts under seal. Such evidence is of three kinds : (1) Evidence as to the fact that there is a document 1. Proof of purporting to be a contract, or part of a contract. existence of docu 2. Of fact (2) Evidence that the professed contract is in truth what ment; it professes to be. It may lack some element necessary of agreeto the formation of contract, or be subject to some parol condition upon which its existence as a contract depends. ment; terms of (3) Evidence as to the terms of the contract. These may 3. Of be incomplete, and may need to be supplemented by parol contract. proof of the existence of other terms; or they may be ambiguous and then may be in like manner explained; or they may be affected by a usage the nature of which has to be proved. We thus are obliged to consider (1) evidence as to the existence of a document; (2) evidence that the document is a contract; (3) evidence as to its terms. between and We must note that a difference, suggested some time back, Difference between contracts under seal and simple contracts, is illus- formal trated by the rules of evidence respecting them. A contract simple under seal derives its validity from the form in which it finds contract, expression: therefore if the instrument is proved the contract is proved, unless it can be shown to have been executed under first the circumstances which preclude the formation of a contract, or ment is to have been delivered under conditions which have remained tract, unfulfilled, so that the deed is no more than an escrow. p. 52. In the instru the con Harrop, 775 But a written contract not under seal is not the contract Wake v. itself, but only evidence, the record of the contract.' Even 6 H. & N. where statutory requirements for writing exist, as under 29 Car. II. c. 3. § 4, the writing is no more than evidentiary In the of a previous or contemporaneous agreement. A written writing is offer containing all the terms of the contract signed by 4 dence of and accepted by performance on the part of B, is enough the con S second the only evi tract. |