Roberts, 9 Minnesota, 119; Varnum v. Thurston, 17 Maryland, 490; Goosey v. Goosey, 48 Mississippi, 210; Salmon Falls M. Co. v. Portsmouth Co., 46 New Hampshire, 249; Goebel v. Wolf, 113 New York, 405; 10 Am. St. Rep. 464; Phelps v. Bates, 54 Connecticut, 11; 1 Am. St. Rep. 92; Dickison v. Dickison, 138 Illinois, 541; 32 Am. St. Rep. 163; Watkins v. Snadon, 93 Kentucky, 501; 40 Am. St. Rep. 203; L'Etourneau v. Henquenet, 89 Michigan, 428; 28 Am. St. Rep. 310.

The intention of a testator must not be defeated because he has failed to clothe his ideas in technical language. Bell County v. Alexander, 22 Texas, 350; 73 Am. Dec. 268.

The rule that the whole paper must be considered, in respect to wills, is applied to agreements as well. "Effect must be given, if possible, to every part of an agreement, and it is only where there is an inconsistency or repug nancy which is totally irreconcilable, that a discrimination will be made as to which part will be made to yield to the other." Barhydt v. Ellis, 45 New York, 107.

SECTION II. Interpretation of Deeds, &c.

WHERE the words employed in an instrument have, besides their ordinary and popular sense, also a peculiar and scientific meaning, in which they are used and understood. by the class of persons engaging in transactions of the kind in question, parol evidence is admissible to show the usage. and explain the meaning; and the intention to use the words in the peculiar sense will be inferred accordingly.

Myers v. Sarl.

30 L. J. Q. B. 9-15 (s. c. 3 El. & El. 306; 7 Jur. (N. S.) 97).

[9] Evidence.

Admissibility of Parol Evidence to interpret Written Contract.
Usage of Trade.

In a contract under seal, by which the plaintiff contracted to build for the defendants a house and premises for a certain sum, it was provided that "no alterations or additions should be admitted unless directed by the defendants' architect by writing under his hand, and a weekly account of the work done thereunder should be delivered to the architect every Monday next ensuing the

performance of such work." In an action on the contract, Held, that parol evidence was admissible to show that by the usage of the building trade "weekly accounts meant accounts of the day work only, and did not extend to extra work capable of being measured.

Action to recover the balance due to the plaintiff on a building.

contract.

The cause was referred at Nisi Prius at the sittings in London after Trinity Term, 1858, and the arbitrator having, by the order of reference," power to state a case for the opinion of the Court, made his award on the 6th of June, 1860, and stated the following

CASE.

The plaintiff was a builder, and by a deed bearing date the 18th day of October, 1856, and executed by him and the defendants, he contracted and agreed with the defendants to erect and build for them a house and premises for the sum of £8697 upon the terms. and subject to the stipulations and conditions contained in the said deed. The house and premises were built by the plaintiff, and certain extra works and fittings were done and provided by him in and about the same, and the action was brought to recover the sum of £3783 4s. 3d., being the balance claimed to be due on the contract and the value of such extra works and fittings, after giving credit to the defendants for all sums paid by them on account.

By the deed of contract it was provided, that "no alterations or additions should be admitted unless directed by the architect of the defendants in writing under his hand, and a weekly account of the work done thereunder should be delivered to the architect or the clerk of the works on every Monday next ensuing the performance of such work; and the delivery of such account should be a condition precedent to the right of the plaintiff to recover payment of any such addition or alteration."

It was contended, on behalf of the defendants, that the plaintiff was not entitled to recover for some of the extra work done by him, on the ground that the same was not directed to be done by the architect by any writing under his hand pursuant to the clause in the contract above set out, and also on the ground that no sufficient weekly account was delivered by the plaintiff within the meaning of that clause.

With respect to the latter objection, it appeared in evidence that

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certain accounts of the extra work were delivered by the plaintiff as and for weekly accounts within the meaning of the contract; and it was contended on his behalf that the term " weekly accounts, as used in the contract, was a term of art well known in the building trade, and to all builders and architects, and that parol testimony was admissible to prove its meaning. The admissibility of such evidence was objected to on the part of the defendants. The arbitrator held that the words used were a term of art, and that such evidence was admissible, and accordingly received the same, and was satisfied thereby that the weekly accounts delivered by the plaintiff of such extra work were sufficient weekly accounts within the meaning of the contract, and, accordingly, included the value of such extra work in the amount awarded to the plaintiff.

With respect to the objection that the plaintiff was not entitled to recover for part of the extra work, on the ground that the same was not directed to be done by the architect by any writing under his hand pursuant to the contract, the arbitrator found and deter

mined that, as regards the greater part of such extra work, [*10] the same was directed to be done by the architect by suffi

cient orders or directions in writing under his hand; but as regards a small part thereof, amounting to the sum of £105 18s. 5d., the only evidence of any such orders or directions in writing produced before him were certain sketches indicating the manner in which such extra work was to be done, but not specifying the materials to be used, or containing any absolute order or direction for the execution of such work. These sketches were all prepared in the office of the architect of the defendants by his clerks and under his directions, and were by his order furnished to the plaintiff, but were not signed by the architect or his clerks. As regards these sketches, the arbitrator held and adjudged that they were not sufficient orders or directions in writing within the meaning of the contract, and accordingly disallowed to the plaintiff the value of the work done under them.

The questions for the opinion of the Court were- First, was the arbitrator right in admitting parol testimony to show the meaning of the term "weekly accounts," as used in the contract?1 If

1 On the argument of the case, the arbitrator, being in court, explained that the question he intended to leave to the Court was, whether the contract was in its

terms such as would admit of parol evidence to show that it had been satisfied by the weekly accounts delivered.

the Court should be of opinion that such evidence was inadmissible, then the amount awarded to the plaintiff was to be reduced by a certain sum.

Secondly, if the Court should be of opinion that the sketches were sufficient written orders or directions for the execution of the works therein indicated, and that no arbitrator ought to have allowed to the plaintiff the value of such works, then the amount awarded to the plaintiff was to be increased by the above sum of £105 18s. 5d.

A rule had been obtained by the defendants, calling on the plaintiff to show cause " why the case should not be remitted back to the arbitrator to be amended in the statement of facts, raising the first point," which rule was to be argued with the special

case.

In the affidavits on which the rule was obtained, specimens of the weekly accounts delivered were attached, which were each headed " accounts of day work and materials," and it was sworn that it was conceded by the plaintiff before the arbitrator, that these accounts" contained an account of only a very small portion of the additions and alterations arising out of the contract, being confined to the day work expended in each week on such additions and alterations, and the materials used in such day work; that the defendants contended that accounts of all the work done ought to have been delivered, according to the unambiguous language of the contract; and the plaintiff then tendered evidence of architects and builders, to prove that the accounts delivered were sufficient, and that it was the custom, or common practice, in the building trade to deliver only accounts of such matters as the said accounts contained; and, in reference to extra works, capable of being measured, it was not usual to give any account of them," which evidence the arbitrator received, after objection by the defendants.

Bovill, for the plaintiff. There is no real ground for the rule. The meaning of the question left by the arbitrator is quite sufficiently expressed in the case; viz., whether the contract admitted of being explained by the parol testimony. He was not bound to state more than what he, in his discretion, thought right, as he was to have power to state a case, but was not bound to state his award in the form of a case. Secondly, he was clearly right, according to all the decided cases, in admitting parol evidence to

No. 3. Myers v. Sarl, 30 L. J. Q. B. 10, 11.

explain the meaning of "weekly accounts," if those words have a peculiar meaning in the building trade, which he has found that they have.

[BLACKBURN, J. Grant v. Maddox, 15 M. & W. 737, 16 L. J. Ex. 227, is directly in point.]

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Lush, contra. That case is distinguishable. Parol evidence is admissible to show the meaning of peculiar words; but here is a whole sentence, which can admit of but one' interpretation, that the plaintiff was to deliver weekly accounts of all the work done thereunder - that is, under the orders of the architect. [BLACKBURN, J. — In Grant v. Maddox, the agreement was to employ the plaintiff for three years, and pay her so much a week in those years, and parol evidence was held admissible to show that "year" meant the theatrical year, or the portion of the year during which the theatre was open; so here, weekly accounts mean accounts of certain portions of the weekly work.] "In the year" is a mere phrase; here is a whole sentence, specific and explicit.

[BLACKBURN, J. ALDERSON, B.'s judgment, in Grant v. Maddox, is directly against the defendants. He says: "It is perfectly true that you have no right to qualify or alter the effect of a written contract by parol evidence; but it is perfectly competent to you to qualify or alter, by parol evidence, the meaning of the words which apparently form the written contract, and to insert the true words which the parties intended to use. That is not to alter the contract, but to show what the contract is. Wherever the words used have, by usage or local custom, a peculiar meaning, that meaning may be shown by parol evidence. Here the contract is, that the plaintiff is to be paid, for three years, a salary of £5, £6, and £7 per week in those years. That means, according to the evidence and the finding of the jury, that she is to be paid so much per week during every week that the theatre is open in those years. You seek to import the word "all" into this

contract.]

It is clearly implied. This case comes directly within the authority of Blackett v. The Royal Exchange Assurance Company, 2 Cr. & J. 244, 1 L. J. (N. S.) Ex. 101, in which parol evidence of usage was held not admissible to show that, under a policy in general terms of the ship's boats, tackle, &c., a boat slung in a particular part of the ship was not included; and Lord LYNDHURST, C. B.,