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only to do what an honest man ought to do, the ties of conscience upon an upright man are a sufficient consideration. (s) A subsequent promise, however, will revive that which is voidable only; therefore where the consideration is void in its creation, no promise can set it up again : As, if all the creditors of an insolvent consent to accept a composition for their demands, on an assignment of his effects by a deed of trust, to which they are all parties, and one of them, before he executes, obtain from the insolvent a promissory note for the residue of his demand, as the condition of his executing the deed, the note is void in law, as a fraud on the rest of the creditors; and a subsequent promise to pay it is a promise without consideration, and will not maintain an action. (t)

9. OF A CONSIDERATION VOID IN PART.

If a contract or agreement be made upon two considerations, and one of them cannot be performed, this will not avoid the contract; and in an action thereon, the damages shall be intended to be wholly given for the good consideration. (u) As, in consideration of the assignment of a title to dower, and the not suing an attachment out of chancery upon a decree; though a title to dower cannot be assigned, but released to the terre-tenant. (v) So, in consideration of a permission to remove goods, and relinquish a foreign attachment, though it cannot be relinquished. (z) Or, in consideration of two things; and one of them is insufficient; as, in consideration of forbearance of a debt due from the defendant and his son ; though, as to the debt of the son, it is of no value. (2). And the void consideration need not be proved. (y) But if one of the considerations is found false by the jury, the action fails. (z) Or, if one of the considerations is unlawful, that vitiates the whole, and the plaintiff shall recover for nothing ; as, in consideration of 2s., and the escape of R.; for the permitting the escape is unlawful. (a)

10. OF A CONSIDERATION FROM A THIRD PERSON.

A promise in some cases is valid though the consideration on which it is made proceed in part from another; as, if a man promise a pig of lcad to A., and his executor give lead for that purpose to B. who undertakes to deliver it to A.; an action lies by A. against B. upon his undertak

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ing. (6) So, in the case of Dutton and wife v. Pool, (c) the plaintiff declared, that his wife's father being seised of certain lands now descended to the defendant, and being about to cut down 10001. worth of timber off from the said lands to raise a portion for his daughter, the defendant, being his heir, promised the father, in consideration that he would forbear to fell the timber, that he would pay the daughter 1000l. After Ferdict for the plaintiff, upon non assumpsit, it was moved in arrest of judgment, that the action ought not to have been brought by the daughter, but by the father; or if the father were dead, by his executors, for the promise was made to the father, and the daughter was neither privy nor interested in the consideration, nothing being due to her : but Scroggs, Ch. J. said, that there was such apparent consideration of affection from the father to his children, for whom nature obliged him to provide, that the consideration and promise to the father might well extend to the children. Judgment for the plaintiff; for the son had the benefit by having the wood, and the daughter had lost her portion by these means. But, in general, it is necessary that the consideration on which the promise is founded should move from the party in whose favour the promise is made. Thus, in the case of Bourne v. Mason, (d) where the plaintiff declared, that A. being indebted to the plaintiff and defendant in two several sums of money, and B. being indebted to A. in another sum, and there being a communication between the parties, the defendant in consideration that A. would permit the defendant to sue B. in A.'s name for the recovery of the sum due from B. to A. promised that he, the defendant, would pay A.'s debt to the plaintiff, and alleged that A. permitted the defendant to sue accordingly, and that he recovered. After verdict for the plaintiff, upon non assumpsit, it was moved in arrest of judgment, that the plaintiff could not maintain this action : and of this opinion were the court, observing, that the plaintiff was a mere stranger to the consideration, having done nothing of trouble to himself, or of benefit to the defendant. And in the case of Crow v. Rogers, (e) where the plaintiff declared, that J. S. was indebted to the plaintiff, and it was agreed between J. S. and the defendant, that the defendant should pay to the plaintiff the debt due to him from J. S., and that J. S. should make the defendant a title to a house, in consideration whereof the defendant promised to pay to the plaintiff the debt due to him from J. S., and then averred that J. S. was always ready to perform his part of the agreement: on demurrer, judgment was given for the defendant, because the plaintiff was a stranger to the consideration.

(6) i Rol. Abr. 27. 1. 40. 31. 1.5.
(c) 2 Lev. 210.
(d) i Vent. 6.

(e) Stra. 592. See also i Bos. & Pul. 101.n.c. 3 Bos. & Pul. 149. n. a.

11. OF A CONSIDERATION WHICH THE PARTY

HAS NOT THE POWER TO GRANT.

The consideration must be such as the party, to whom a promise is made, has a power by law to perform, or cause to be performed, otherwise the promise cannot be enforced. Thus, in the case of Harvey v. Gibbons (f) the plaintiff declared, that he being bailiff to J. S., the defendant in consideration that the plaintiff would discharge defendant of a debt due to J. S., promised, &c. After verdict and judgment for the plaintiff in the court below, it was reversed in B. R., because the plaintiff could not discharge a debt due to his master. And the principle established by this case was recognized by Lord Kenyon, Ch. J. in the case of Nerot v. Wallace, (g) where the consideration was, that the plaintiffs, who were assignees under a commission of bankrupt against J. S. would forbear to proceed to have the examination of J. S. taken before the commissioners concerning certain sums, with which J. S. was charged, and that the commissioners would forbear and desist accordingly. Lord Kenyon said, “ The ground on which I found my judgment is this; that every person who, in consideration of some advantage either to himself or another, promises a benefit, must have the power of conferring it up to the extent to which the benefit professes to go; and that not only in fact, but law.” Now the promise made by the assignees in this case, which was the consideration of the defendant's promise, was not in their power to perform; because the commissioners had nevertheless a right to examine the bankrupt. And no collusion of the assignees could deprive the creditors of the right of examination which the commissioners would procure them. The assignees stipulated not only for their own acts, but also that the commissioners should forbear to examine the bankrupt; but clearly they had no right to tie up the hands of the commissioners by any such agreement. And if any proposal of that sort had been made to the commissioners, they, as acting in a public duty, would have been guilty of a breach of that duty in acceding to it. () 2 Lev. 161.

(g) 5 Term Rep. 22.

CHAPTER II.

1. OF THE CONSTRUCTION OF CONTRACTS

AND AGREEMENTS.

AVING in the former Chapter treated of the general nature and

parts of a contract and promise, I propose in the present Chapter to show, first, the general rule adopted in the construction of contracts and agreements; secondly, what shall be deemed a penalty or stipulated damages for securing the performance of a contract; thirdly, the power of the parties to cancel or rescind a contract or agreement; and, lastly, the general rules to be observed with regard to the performance of a contract.

The general rule adopted in our courts of law and equity, in the construction of a contract or agreement is, that it shall 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. (a) So, with regard to mercantile instruments, the rule is, that the construction should be liberal, agreeable to the real intention of the parties, and comformable to the usage of trade in general, and of the particular trade to which the contract relates. (6)

Pothier, in his very learned treatise on obligations, (c) lays down the following (amongst other) rules for the interpretation of agreements; 1. We ought to examine what was the common intention of the contracting parties, rather than the grammatical sense of the terms. (d) 2. When a clause is capable of two significations, it should be understood in that which will have some operation, rather than that in which it will have none. (e) 3. Where the terms of a contract are capable of two, significations, we ought to understand them in the sense which is most agreeable to the nature of the contract. (f) 4. Any thing which may appear ambiguous in the terms of a contract, may be explained by the

(a) Per Lord Ellenborough, 4 East (d) See also 5 Vin. Abr. 510. Cowp. Rep. 135.

600. i Term Rep. 703. (6) Doug. 277.

(e) Co. Lit. 42. a. Cowp. 714. (c) Part 1. c. 1. s. 1. art. 7. Evans's (f) Doug. 72, 3. 2 Bos. & Pul. 565. edition.

5 Vin. Abr. 510.

common

use of those terms in the country where it is made. (g) 5. Usage is of so much authority in the interpretation of agreements, that a contract is understood to contain the customary clauses, although they are not expressed. (h) 6. We ought to interpret one clause by the others contained in the same act, whether they precede or follow it. 8. However general the terms may be in which an agreement is conceived, it only comprises those things respecting which it appears that the contracting parties proposed to contract, and not others which they never thought of. 10. When a case is expressed in a contract, on account of any doubt which there may be whether the engagement resulting from the contract would extend to such case, the parties are not thereby understood to restrain the extent which the engagement has of right, in respect to all cases not expressed. 11. In contracts, as well as in testaments, a clause conceived in the plural may be frequently distributed into several particular clauses. 12. What is at the end of a phrase, commonly refers to the whole phrase, and not only to what immediately precedes it, provided it agrees in gender and number with the whole phrase. Now these rules claim our particular attention, not only on account of the high estimation in which the opinions of Pothier are always received, (*) but because these rules will be found to be quite consonant to the principles of the English law, and to the practice of our courts, in the construction of contracts and agreements, upon examining the authorities which I have already cited at the end of the different rules, and to a few others which I shall now lay before the reader.

In Plowden's Commentaries, (2) it is said " That if any persons are agreed upon a thing, and words are expressed or written to make the agreement, although they are not apt and usual words, yet if they have substance in them tending to the effect proposed, the law will take them to be of the same effect as usual words ; for the law always regards the intention of the parties, and will apply the words to that which, in common presumption, may be given to be their intent. And such laws are very commendable: for if the law should be so precise as always to insist upon a peculiar form and order of words in agreements, and would not regard the intention of the parties, when it was expressed in other words of substance, but would rather apply the intention of the parties to the order and form of words, than the words to the intention of the parties, such law would be more full of form than of substance. But our law, which is the most reasonable law upon earth, regards the effect and substance of words more than the form of them, and takes the substance of words to imply the form thereof, rather than that the intent of the parties should be void : and the law.

(g) 5 Vin. Abr. 511. 1 Bl. Rep. 258. (*) Vide Sir W. Jones Law of Bail6 Term Rep. 338.

ments, p. 29. &c. (h) 8 Bro. P. C. 341. Doug. 201. (i) Fo. 140. 290.

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