Sec 632

The last qualification cannot be overlooked without prejudicing the first. Parties familiar with business are apt to use terms in the sense in which these terms have been construed by the local courts. Hence, when a word has attached to it by such courts a settled technical meaning, parties are to be supposed to use that word with the same meaning.1 Thus, in a lease, the words "demise" and "let" import a covenant in law for title and for quiet enjoyment during the term.2 And the word "ton," in a contract for the sale of iron, will be interpreted as the statutory ton.3 But the legal meaning, no matter how settled, must yield to the sense in which the term is used by the parties.4 "The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it."5 The true meaning is to override any arbitrary technical meaning;6 and the popular meaning is to override the technical meaning when the parties used the word in the popular sense.7 This, as we will hereafter see, is eminently the case with informal documents, emanating from business men, in which they must be supposed to have used terms in their common business sense.8

Accepted legal meaning of words to be received.

the purview of the contract is left in doubt, and there is, of course, nothing to submit to the jury. Thompson V. Richards, 14 Mich. 172. But where the terms of a negotiation are left to oral proofs, the question what the parties said and did, and what they intended should be understood thereby, is single, and cannot be separated so as to refer one part to the jury and another part to the judge; but in its entirety the question is one of fact. Strong V. Saunders, 15 Mich. 339; Maas V. White, 37 ib. 126; Estate of Young, 39 ib. 429; Eagle V. Campbell, 42 ib. 565."

1 Hart V. Hammett, 18 Vt. 127; Clark V. Pinney, 7 Cow. 681; Ell-maker V. Ellmaker, 4 Watts, 89.

2 Leake, 2d ed. 236; Line V. Stephenson, 5 Bing. N. C. 183; 7 Scott, 69; Mostyn V. Coal Co., L. R. 1 C. P. D. 145.

3 Evans V. Myers, 25 Penn. St. 114.

4 Infra, sec 638; Browning V. Wright, 2 B. & P. 24; Biddlecomb V. Bond, 4 A. & E. 322.

5 Schuyl. NaV. Co. V. Moore, 2 Whart. 491.

6 James, L. J., Greenwood V. Greenwood, L. R. 5 Ch. D. 956.

7 Mallan V. May, 13 M. & W. 51; Robertson V. French, 4 East, 130; Stanley V. Ins. Co., L. R. 3 Ex. 71; Schuylkill NaV. Co. V. Moore, 2 Whart. 491.

8 Infra, sec 638.

Sec 633

If there is a variance between descriptive averments in a deed, and natural objects referred to as monuments, then the latter, if of a fixed and permanent character, are to prevail. It is not improbable that the surveyor, from whose notes the deed is made up, may have made a mistake in his reckoning. But it is very improbable that he should have made a mistake in referring to any conspicuous permanent natural monuments.1 "It is more likely that men may commit an error in courses, or distances, or admeasurements, or in reference to ideal lines, such as those of surveys, than in monuments, and fixed and stationary objects, visible on the very land; and that in purchases and sales and bounties, the latter, as the best ordinary means of information, as well as of exclusive possession, are uppermost in their minds, and regulate their acts, and intentions. Hence, a known spring, referred to as the corner of a boundary line, has always been deemed a more certain reference, in the understanding of the parties, than the ideal line of a survey of the land of another person, supposed to terminate at the same place."2 It is true that boundary lines, when settled by a deed, and when capable of consistent explanation, cannot be varied by parol.3 But when stakes, stones, or other signs are referred to, then their position may be determined by extrinsic proof, and, when they are of a permanent character, they are to be regarded, unless mistake be shown, as the final arbiters.4 So parol evidence is admissible to show the changes in monuments and stakes.5 - It should be added that when, from the whole tenor of the document, it appears that the name of a person or of a thing is given in a particular sentence erroneously, it may be corrected by the context.1 - But merely descriptive words and recitals are not to be permitted to control the general sense of the contract.2

Descriptive words are to yield to fixed natural objects as well as to construction.

1 Cleaveland V. Smith, 2 Story, 279.

2 Story, J., ibid.; see Story on Cont. sec 778; citing also, among other cases, Smith V. Galloway, 5 B. & Ad. 43; Newsom V. Pryor, 7 Wheat. 7; Machias V. Whitney, 16 Me. 343; Boardman V. Reed, 6 Pet. 328; Frost V. Spaulding, 19 Pick. 445.

3 Linscott V. Fernald, 5 Greenl. 496; Liverpool Wharf V. Prescott, 4 Allen,.

22; Clark V. Baird, 9 N. Y. 183; Waugh V. Waugh, 28 N. Y. 94; Wynne V. Alexander, 7 Ired. L. 237.

4 Wing V. Burgiss, 13 Me. 111; Ger-rish V. Towne, 3 Gray, 82; Pettit V. Shepherd, 32 N. Y. 97; Reed V. Shenck, 8 DeV. L. 65; Colton V. Seavey, 22 Cal. 496.

5 Robinson V. Kine, 70 N. Y. 147.

Sec 634: Cyphers, short-hand expressions, abbreviations, and obscurities caused by the use of obsolete words, or by the wearing away of the paper, may be explained by experts, subject to the revision of their testimony by court and jury.3 Informal memoranda may also be explained by parol, when they are used as shorthand and elliptical signs of a meaning understood between the parties.4 This is necessarily the case with telegrams, which are sometimes in cypher, and are almost invariably compressed into a few salient words.5