Sec 648

When a writing is lost, and parol proof is given of its contents, the province of determining the meaning of these contents remains with the court to the same effect as if the written document were restored, reserving, however, to the jury the determination of the question how far, as a matter of fact, the meaning of the lost writing is reproduced.1

So of lost document.

1 Per cur. in Neilson V. Harford, 8 M. & W. 823; Leake, 2d ed. 218; Di Sora V. Phillips, 10 H. L. C. 638; see supra, sec 631; 1 Ch. on Con., 11th Am. ed. 103; Reuss V. Picksley, L. R. 1 Ex. 342; Levy V. Gadsby, 3 Cranch, 180; Woodman V. Chesley, 39 Me. 45; Randall V. Thornton, 43 Me. 226; Nash V. Drisco, 51 Me. 417; Drew V. Towle, 10 Fost. 53; Pratt V. Langdon, 12 Allen, 544; Smith V. Faulkner, 12 Gray, 251; Globe Works V. Wright, 106 Mass. 207; School District V. Lynch, 33 Conn. 330; Jones V. Bunker, 83 N. C. 324; Emery V. Owings, 6 Gill, 191; Collins V. Banbury, 5 Ired. 118.

2 Supra, sec 631; Short V. Woodward, 13 Gray, 86; Festerman V. Parker, 10 Ired. 477; McAvoy V. Long, 13 111. 147.

3 See Guptill V. Damon, 42 Me. 271; Globe Works V. Wright, 106 Mass. 216; Rapp V. Rapp, 6 Barr, 45; Edwards V.

Goldsmith, 16 Penn. St. 43.

4 Supra, sec 631; Moore V. Garwood, 4 Exch. 681; Brown V. Orland, 36 Me. 376; Globe Works V. Wright, 106 Mass. 216; Short V. Woodward, 13 Gray, 86; Bomeisler V. Dobson, 5 Whart. 398; Hooper V. Webb, 27 Minn. 485.

Sec 649

The rules of construction, which are adopted in courts of law, are substantially adopted in courts of equity.2 There is this important distinction, however, to be observed. The burden is on the actor, or the person bringing a suit, to make out his case. When a contract is ambiguous, therefore, then a party seeking to have it specifically performed might have a decree against him, while the other party, if seeking to rescind it, might also fail in making out a case. In other words, unless a case requiring relief is made out, an agreement will not be either enforced or rescinded.3 A court of equity, also, will grant relief, in defiance of the grammatical construction in all cases of bonds with penalties. This, however, is based, not on rules of construction, but on the principle that only what is due is to be paid. sec 650. Whether a document was meant to be an escrow; whether it was obtained by fraud; whether it was obtained only conditionally; whether it was meant to be a mere project, without binding effect; - these are all questions which parol evidence is admissible to determine.4 But as a matter of law, the construction of the document is for the court.5 Whether a stipulation is a condition depends upon the intention of the parties;6 but in collecting this intention, the whole context is to be examined.7 - Wheu acts are made reciprocally dependent, a party suing for nonperformance must aver readiness to perform, or performance.8 sec 651. Although in old manuscripts it was not usual to insert punctuating marks, and although in England it is still not usual to insert such marks in either statutes or deeds, vet when they are used, they will be taken into account in determining the meaning of the document into which they are introduced.1 False punctuation, however, may be overridden, when this is requisite to bring out the true sense; and if there be no punctuation, the proper inflections will be supplied by the court.2 - Parol proof is admissible to prove the meaning of points.3 - But sense is not to be sacrificed to punctuation when used carelessly or ignorantly.4 sec 652. Whether, when a document is partly written and partly printed, the writing and the printing stand on the same footing, has been much discussed.5 The prevalent opinion is, that as the writing ordinarily constitutes the differentia of a case, it is, in a case of conflict, when by so doing the general sense of the document can be maintained, to be regarded as overriding the printed context.6 "The written words are the immediate language and words selected by the parties themselves for the expression of their meaning, and the printed words are a general formula, adapted equally to their case and that of all other contracting parties on similar occasions."7 "The language of printed blanks is easily assumed to be appropriate, without careful examination, while the written words more safely and more nearly indicate the intention of the contracting parties."8 It has therefore been held that " the part that is specially put into a written instrument is naturally more in harmony with what the parties are intending than the other, although it must not be used to reject the other, or to make it have no effect."9

Rules the same in equity as in law.

Construction of conditions to be by court.

Punctuation to be followed.

1 Berwick V. Horsfall, 4 C. B. N. S. 450; Moore V. Holland, 39 Me. 307.

2 Leake, 2d ed. 217; Ch. on Con. 11th Am. ed. 104; Scott V. Liverpool, 3 De G. & J. 334; Eaton V. Lyon, 3 Ves. 692.

3 Infra, sec 654 et seq.

4 Wh. on EV. sec 927 et seq.

5 See fully supra, sec 553 et seq.; Leake, 2d ed. 219.

6 Supra, sec 554. 7 Supra, sec 555. 8 Supra, sec 558.

Writing distinctively effective as compared with print.

1 Leake, 2d ed. 221; Gauntlett V. Carter, 17 BeaV. 586; Caston V. Brock, 14 S. C. 104.

« See Willis V. Martin, 4 T. R. 65.

3 Graham V. Hamilton, 5 Ired. L. 428.

4 White V. Smith, 33 Penn. St. 186; Osborn V. Farwell, 87 Ill. 89.

5 See Wh. on EV. sec 925; Wood on Ins. 148; Flanders on Ins. 70; May on Ins. sec 184; Magee V. Lavell, L. R. 9 C. P. 113; Gumm V. Tyrie, 6 B. & S. 298.

6 Robertson V. French, 4 East, 136;.

Yonng V. Grote, 4 Bing. 253; Nicoll V.

Ins. Co., 3 Wood, & M. 529; Hernandez V. Ins. Co., 6 Blatch. 317; Benedict V. Ins. Co., 31 N. Y. 397; Hill V. Miller, 76 N. Y. 32; Clark V. Woodruff, 83 N. Y. 518; People V. Dulaney, 96 Ill. 503.

7 Per cur. in Robertson V. French, 4 East, 136.

8 Finch, J., Clark V. Woodruff, 83 N. Y. 523.

9 Blackburn, J., Joyce V. Ins. Co., L. R. 7 Q. B. 583; Dudgeon V. Pembroke,.