Philip Pendleton Barbour

“ The questions then arising upon this record, are: first, whether the Court erred in refusing to permit the evidence offered by the defendant to go to the jury? And, secondly, whether they erred in giving the instruction to the jury which they did give, at the instance of the plaintiffs? As to the first question. It is a principle recognised and acted upon by all Courts of justice, as a cardinal rule in the construction of all contracts, that the intention of the parties is to be inquired into; and if not forbidden by law, is to be effectuated. ”

“ Armitage, will illustrate the second branch of this rule, that of the admission of parol evidence, to annex customary incidents. In that case it was held, that a custom for an away-going tenant to provide work and labour, tillage and sowing, and all materials for the same, in his away-going year, the landlord making him a reasonable compensation, is not excluded by an express written agreement between the landlord and tenant, which is consistent with such a custom. Now, here proof of the custom was considered as necessary to apply the contract to its proper subject matter. ”

“ The terms used in the written contract are, 'for the use of the steamboat Franklin, until the Sydney is placed on the route to Potomac creek.' It is contended, that this amounted to a stipulation to keep the Franklin in use until the Sydney was placed on the route; no matter what length of time may have elapsed before that was done. Suppose that the Sydney had been accidentally consumed by fire the day after the hiring of the Franklin, the effect of this construction would be, to make that hiring co extensive in point of time with the existence of the Franklin, in a condition for use ”

“ Had the steamboat company established that they in previous winters took their boat, the Franklin, out of the Potomac, after the ice formed in this river, and run her in other waters, not subject to ice; and that Mr. Bradley prevented them from taking the usual course until the boat was frozen up in the river; then all equity and justice would have been on the side of the plaintiffs below. Hence the rights of the parties on another trial will not depend on the written contract ”

“ It appears from the bill of exceptions, that after the plaintiff had closed his evidence, the defendant, amongst other things, offered to prove, that he for several years had been, and then was, contractor for the transportation of the mail, from Washington to Fredericksburg; that the customary route of said mail was by steamboat from Washington to the Potomac creek, thence by land to Fredericksburg, and that passengers were also transported on that route ”

“ Sometimes it has been applied to deeds, sometimes to wills, and sometimes to mercantile and other contracts. In some cases it has been resorted to to ascertain which of several persons was intended; in others, which of several estates. ”

“ Their entire meaning is taken to be in the writing. 3 Stark. Evid. 999, 1000. $By this means new and independent stipulations are sought, as I apprehend, to be added, dehors the written agreement, varying its terms plainly expressed; so that it may be made to operate different ways, according to the explanatory evidence. This case well-illustrates the effect of the doctrine. Had the ice not closed theiriver, then Mr. Bradley would have had no excuse: this is matter of proof. Had the Sydney not been repaird, then he would have had no excuse: This is also matter of proof. ”