Bush v. Whitehaven Trustees (1888), 52 J. P. 392, at p. 393, Lord Coleridge, C. J. "The real question in this case is the extent of the application in English law of the principle of the Roman law which has been adopted and acted on in many English decisions, and notably in the case of Taylor v. Caldwell (1863), 3 B. & S. 826; 32 L. J. Q. B. 164. . . . Whatever may have been the limits of the Roman law, the case of Nickoll v. Ashton, [1901] 2 K. B. 126; 70 L. J. K. B. 600, makes it plain that the English law applies the principle not only to cases where the performance of the contract becomes impossible by the cessation of existence of the thing which is the subject-matter of the contract, but also to cases where the event which renders the contract incapable of performance is the cessation or non-existence of an express condition or state of things going to the root of the contract, and essential to its performance."-Krell v. Henry, [1903] 2 K. B. 740, at pp. 747, 748; 72 L. J. K. B. 794, at p. 796, Vaughan Williams, L. J. Implied Promise. Expressum facit cessare tacitum. Co. Litt. 210 a, 183 b. The Court ought not to imply a term in a contract unless there Where acts to be done by the party binding himself can only be done upon something of a corresponding character being done by the opposite party, there is implied a corresponding and correlative obligation on him to do the things necessary for the completion of the contract, care being taken not to make the contract speak where it was intentionally silent and not to make it speak entirely contrary to the intention of the parties. "Where parties have entered into written engagements, with expressed stipulations, it is manifestly not desirable to extend that B. K by any implications; the presumption is that, having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument."-Aspdin v. Austin (1844), 5 Q. B. 671, at p. 684; 13 L. J. Q. B. 155, at pp. 158, 159, Lord Denman, C. J., delivering the judgment of the Court. "We should not by inference insert in a contract implied provisions with respect to a subject which the contract has expressly provided for. If a man sell a horse, and warrant it to be sound, the vendor knowing at the time that the purchaser wants it for the purpose of carrying a lady, and the horse, though sound, proves to be unfit for that particular purpose, this would be no breach of the warranty. So with respect to any other kind of warranty. The maxim expressum facit cessare tacitum applies to such cases. If this were not so, it would be necessary for the parties to every agreement to provide in terms that they are to be understood not to be bound by anything which is not expressly set down-which would be manifestly inconvenient."-Dickson v. Zizinia (1851), 10 C. B. 602, at pp. 610, 611; 20 L. J. C. P. 73, at p. 75, Maule, J. "We think the cases have established that where a relation exists between two parties which involves the performance of certain duties by one of them and the payment of reward to him by the other, the law will imply, or the jury may infer, a promise by each party to do what is to be done by him."--Morgan v. Ravey (1861), 6 H. & N. 265, at p. 276; 30 L. J. Ex. 131, at p. 134, Pollock, C. B. "I look on the law to be that, if a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative."-Stirling v. Maitland (1864), 5 B. & S. 840, at p. 852; 34 L. J. Q. B. 1, at p. 3, Cockburn, C. J. (approved of by Lord Hatherley in Rhodes v. Forwood (1876), 1 App. Cas. 256, at pp. 271, 272; 47 L. J. Ex. 396, at p. 404). "I entirely concur with the position taken by the learned counsel for the suppliant, that although a contract may appear on the face of it to bind and be obligatory only upon one party, yet there are occasions on which you must imply-although the contract may be silent-corresponding and correlative obligations. on the part of the other party in whose favour alone the contract may appear to be drawn up. Where the act to be done by the work. party binding himself can only be done upon something of a corresponding character being done by the opposite party, you would there imply a corresponding obligation to do the things necessary for the completion of the contract. As in the case cited by Sir Hugh Cairns: if A. covenants or engages by contract to buy an estate of B., at a given price, although that contract may be silent as to any obligation on the part of B. to sell, yet as A. cannot buy without B. selling, the law will imply a corresponding obligation on the part of B. to sell [Pordage v. Cole (1681), 1 Wms. Saund. 319 1.]. So, if a man engages to work, and render services which necessitate great outlay of money, time, and trouble, and he is only to be paid by the measure of the work he has performed, the contract necessarily presupposes and implies on the part of the person who engages him an obligation to supply the So, where there is an engagement to manufacture some article, a corresponding obligation on the other party is implied to take it, for otherwise it would be impossible that the party bestowing his services could claim any remuneration. Numerous other cases might be put of the same kind; but in all these instances, contract is silent, the Court or jury who are called upon to imply an obligation on the other side which does not appear in the terms of the contract, must take great care that they do not make the contract speak where it was intentionally silent; and above all, that they do not make it speak entirely contrary to what, as may be gathered from the whole terms and tenor of the contract, was the intention of the parties. This I take to be a sound and safe rule of construction with regard to implied covenants and agreements which are not expressed in the contract.' Churchward v. The Queen (1865), L. R. 1 Q. B. 173, at pp. 195, 196, Cockburn, C. J. where a "The proper rule to apply therefore is . . . the ordinary rule, that if authority is given expressly, though by affirmative words, upon a defined condition, the expression of that condition excludes the doing of the act authorized under other circumstances than those so defined: expressio unius est exclusio alterius."-North Stafford Steel, &c. Co. v. Ward (1868), L. R. 3 Ex. 172, at p. 177, Willis, J. "I think I may safely say, as a general rule, that where in a written contract it appears that both parties have agreed that Something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect. What is the part of each must depend on circumstances."-Mackay v. Dick (1881), 6 App. Cas. 251, at p. 263, Lord Blackburn. "It seems to me that whenever circumstances arise in the ordinary business of life in which, if two persons were ordinarily honest and careful, the one of them would make a promise to the other, it may properly be inferred that both of them understood that such a promise was given and accepted."—Ex parte Ford (1885), 16 Q. B. D. 305, at p. 307; 55 L. J. Q. B. 406, at p. 407, Lord Esher, M. R. "No Court has a right to imply any term as between parties which was not clearly and obviously within the contemplation of both the parties.”—Butler v. Manchester, Sheffield and Lincolnshire Rail. Co. (1888), 21 Q. B. D. 207, at p. 212, Lord Esher, M. R. . . "I agree with the rule as laid down by the Master of the Rolls (Lord Esher), viz., that the Court ought not to imply a term in a contract unless there arises from the language of the contract itself, and the circumstances under which it is entered into, such an inference that the parties must have intended the stipulation in question that the Court is necessarily driven to the conclusion that it must be implied. To state the rule in any wider terms would be going, I think, beyond what is justifiable on principle. The nature and extent of the contract which the Court will imply in such cases is stated by Cockburn, C. J., in the case of Stirling v. Maitland [(1864), 5 B. & S. 840, at p. 852; 34 L. J. Q. B. 1, at p. 3]. He says: "I look on the law to be that, if a party enters into an arrangement, which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances under which alone the arrangement can be operative.'"-Hamlyn & Co. v. Wood & Co., [1891] 2 Q. B. 488, at pp. 494, 495; 60 L. J. Q. B. 734, at pp. 737, 738, Kay, L. J. "The case comes within the well-known rule that where the contract as expressed in writing would be futile, and would not carry out the intention of the parties, the law will imply any term obviously intended by the parties which is necessary to make the contract effectual."-Oriental Steamship Co. v. Tylor, [1893] 2 Q. B. 518, at p. 527; 63 L. J. Q. B. 128, at p. 132, Bowen, L. J. (cited by Stirling, J., in Holford v. Acton Urban Council, [1898] 2 Ch. 240, at p. 246; 67 L. J. Ch. 636, at p. 639). "On the question of construction it is necessary to distinguish clearly between the interpretation of the language used and the consequences arising in law from using it. The interpretation of the words ought to precede the implications of law, and the language actually used ought not, in my judgment, to be altered so as to put in an express condition when it is only implied."--Diederichsen v. Farquharson Brothers, [1898] 1 Q. B. 150, at p. 159; 67 L. J. Q. B. 103, at p. 109, Rigby, L. J. 66 (See also post, p. 172, " Express or Implied Covenants.") would Golden Rule. "The golden rule of construction is, that words are to be construed according to their natural meaning, unless such a construction either render them senseless or would be opposed to the general Scope and intent of the instrument; or, unless there be Some cogent reason of convenience in favour of a different interpretation."-Fowell v. Tranter (1864), 3 H. & C. 458, at p. 461; 34 L. J. Ex. 6, at p. 7, Bramwell, B. [N.B.—This is not quite the same as Lord Wensleydale's golden rule stated in Grey v. Pearson (1857), 6 H. L. Cas. 61, at p. 106; 26 L. J. Ch. 473, at p. 481 (see ante, p. 75).—AUTHOR.] Iƒ 66 Ambiguity. Contract Operating Several Ways. a contract can be performed in several ways, that mode is adopted which is the least profitable to the plaintiff, and the least burdensome to the defendant. Where a doubt exists the interpretation that renders the contract valid should be accepted, and not that which renders the contract invalid. Where there is any doubt as to the interpretation of any stipulation in a contract, it ought to be interpreted strictly against the party in whose favour it has been made. Generally speaking, where there are several ways in which the contract might be performed, that mode is adopted which is the least profitable to the plaintiff, and the least burthensome to the |