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AMERICAN JURIST.

NO. XLVII.

OCTOBER, 1840.

ART. I.-LAW OF CONTRACTS.

No. 9.Construction of Contracts. 6. If the words of a contract do not fully express, or even if they are contrary to, the evident intention of the parties, the intention is to be preferred to the expression.'

Thus the condition of a bond of £2000 being “to render a fair, just and perfect account in writing of all sums received” was held to be broken by the obligor's neglect to pay over such sums. Lord Mansfield said, it was clearly the intention of the parties, that the money should be paid. Buller, J., said, it never could be meant that so large a penalty should be taken merely to enforce the making out of a paper of items and figures. So a proviso, that an annuity to a married woman should cease, if she should "associate, continue to keep company with, or criminally correspond with J. F.," was extended to all intercourse, so that J. F.'s calling and leaving his card at the house, and sometimes being admitted, though no improper behavior on

Domat, 37, § 11.

VOL. XXIV.NO. XLVII.

2 Bache o. Proctor, 1 Doug. 382.

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his part, or levity on her's, was shown, was decided to be sufficient cause to stop the annuity. A covenant that the lessee shall not exercise the trade of a butcher upon the demised premises, is broken by his there selling raw meat by retail, though no beasts were slaughtered there; the intention being to prevent the lowering of the tenement in the scale of houses, by the exercise, whether wholly or partially, of a trade which the lessor supposed would depreciate its value in future. So a covenant by a lessee not to use or exercise, or suffer to be used or exercised upon the premises, any trade or business whatsoever without license of the lessor, was held to be broken by assigning the lease to a schoolmaster who kept a school in the house.»

These, and numerous other cases, come under the first part of rule, namely, when the words “ do not fully express” the intention of the contracting parties. They might, perhaps, be as properly classed under the third rule, that “the subject matter of an agreement is to be considered in construing the terms of it,” &c.

The following examples fall under the latter part of the rule; that is, where the words are contrary to the evident intent of the parties; as Vernon v. Alsop," and the other cases mentioned in our last number, where the condition of a bond was wholly contrary to the bond itself and nullified it; and the cases of evident mistake, cited under the fifth rule. So of a note or bill of exchange made payable to the order of a fictitious person, which is held to be payable to bearer.

· Dormer o. Knight, 1 Taunt. 417. 2 Doe o. Spry, 1 Barn. & Ald. 617.

3 Doe n. Keeling, 1 M. & S. 95. See also Doe v. Worsley, 1 Campb. 20 ; Doe o. Laming, 4 Campb. 77; Tombs o. Painter, 13 East, 1 ; Quackenboss o. Lansing, 6 Johns. 49. For construction of a covenant not to assign a lease without license, see 2 Selw. N. P. (1st ed.) 408-412; 3 M. & S. 353; 15 Johns, 278; 3 Pick. 221 ; 2 Stark. Ev. 433; 7 Johns. 227. 4 1 Lev. 77; 1 Sid. 105; T. Ray. 68.

Kyd on Bills, 208-268; Gould on Pleading, 159.

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