Terms to be construed in their

general

Cal., p. 137; Kimball vs. Semple, 25 Cal., p. 441; McNeil vs. Shirley, 33 Cal., p. 203; see notes to Secs. 1858, 1859. For description of real property, see Sec. 2077, post.

1861. The terms of a writing are presumed to have been used in their primary and general acceptaacceptation tion, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.

Written words control

NOTE.-Parol evidence is admissible to explain particular expressions in deeds.—Reamer vs. Nesmith, 34 Cal., p. 625.

1862. When an instrument consists partly of written words and partly of a printed form, and the two printed in a are inconsistent, the former controls the latter.

those

blank form.

Persons

skilled may testify to decipher

1863. When the characters in which an instrument is written are difficult to be deciphered, or the characters. language of the instrument is not understood by the

Of two constructions, which preferred.

Court, the evidence of persons skilled in deciphering the characters, or who understand the language, is admissible to declare the characters or the meaning of the language.

1864. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.

NOTE.-Say the New York Commissioners: "The first part of this section expresses a rule of ethics which should find a place in these rules of construction. 'When the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promisor apprehended, at the time that the promisee received it.' It is not the sense in which the

promisor actually intended it that always governs the
interpretation of an equivocal promise, because at that
rate you might excite expectations which you never
meant, nor would be obliged to gratify. Much less is
it in the sense in which the promisee actually received
the promise; for, according to that rule, you might be
drawn into engagements which you never designed to
make. It must, therefore, be the sense (for there is no
other remaining) in which the promisor believed the
promisee accepted his promise. This will not differ
from the actual intention of the promisor, when the
promise is given without collusion or reserve; but we
put the rule in the close form, to exclude evasion in
cases in which the popular meaning of a phrase and
the strict grammatical construction of the words differ;
or, în general, wherever the promisor attempts to make
his escape through some ambiguity in the expressions
which he used.

"Temures promised the garrison of Sebastia that if
they would surrender, no blood should be shed. The gar-
rison surrendered, and Temures buried them all alive.
Now, Temures fulfilled the promise in one sense, and
in the same, too, in which he intended it at the time,
but not in the sense in which the garrison of Sebastia
actually received it, nor in the sense in which Temures
himself knew that the garrison received it; which last
sense, according to our rule, was the sense in which he
was in conscience bound to have performed it. *
From the principle established in the last Chapter, 'that
the obligation of a promisor is to be measured by the
expectation which the promisor anyhow voluntarily
and knowingly excites, results a rule which governs
the construction of all contracts, and is capable, from
its simplicity, of being applied with great care and
certainty, viz: that whatever is expected by one side
and known to be so expected by the other, is to be
deemed a part or condition of the contract.""-Paley's
Moral Philosophy, pp. 85, 97.

instrument

as under

stood by

parties.

1865. A written notice, as well as every other A written writing, is to be construed according to the ordinary construed acceptation of its terms. Thus a notice to the drawers or indorsers of a bill of exchange or promissory note, that it has been protested for want of acceptance or payment, must be held to import that the same has been duly presented for acceptance or payment and

Construction in favor of natural right preferred.

Material

allegation

the same refused, and that the holder looks for payment to the person to whom the notice is given.

NOTE.-Eastman vs. Turman, 24 Cal., p. 383; Stoughton vs. Swan, 4 Cal., p. 213; McFarland vs. Pico, 8 Cal., p. 626; Thompson vs. Williams, 14 Cal., p. 160.

1836. When a statute or instrument is equally susceptible of two interpretations, one in favor of natural right, and the other against it, the former is to be adopted.

1867. None but a material allegation need be

only to be proved.

proved.

Evidence

confined

allegation.

NOTE.-See Sec. 471, ante.

1868. Evidence must correspond with the subto material stance of the material allegations, and be relevant to the question in dispute. Collateral questions must therefore be avoided. It is, however, within the discretion of the Court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness.

Affirmative only to be proved.

Facts

which may be proved

on trial.

1869. Each party must prove his own affirmative allegations. Evidence need not be given in support of a negative allegation, except when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded, nor even in such case when the allegation is a denial of the existence of a document, the custody of which belongs to the opposite party.

1870. In conformity with the preceding provisions, evidence may be given upon a trial of the following facts:

1. The precise fact in dispute;

2. The act, declaration, or omission of a party, as evidence against such party;

3. An act or declaration of another, in the presence Same. and within the observation of a party, and his conduct in relation thereto;

4. The act or declaration, verbal or written, of a deceased person in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person; the act or declaration of a deceased person done or made against his interest in respect to his real property; and also in criminal actions, the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death;

5. After proof of a partnership or agency, the act or declaration of a partner or agent of the party, within the scope of the partnership or agency, and during its existence. The same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly interested with the party;

6. After proof of a conspiracy, the act or declaration of a conspirator against his co-conspirator, and relating to the conspiracy;

7. The act, declaration, or omission forming part of a transaction, as explained in Section 1850;

8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same matter;

9. The opinion of a witness respecting the identity or handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein;

10. The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer; and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given;

51-VOL. II.

Same.

11. Common reputation existing previous to the controversy, respecting facts of a public or general interest more than thirty years old, and in cases of pedigree and boundary;

12. Usage, to explain the true character of an act, contract, or instrument, where such true character is not otherwise plain; but usage is never admissible, except as an instrument of interpretation;

13. Monuments and inscriptions in public places, as evidence of common reputation; and entries in family bibles, or other family books or charts; engravings on rings, family portraits, and the like, as evidence of pedigree;

14. The contents of a writing, when oral evidence thereof is admissible;

15. Any other facts from which the facts in issue are presumed or are logically inferable;

16. Such facts as serve to show the credibility of a witness, as explained in Section 1817.

NOTE. Subd. 2.-Burritt vs. Gibson, 3 Cal., p. 396; Poole vs. Gerrard, 9 Cal., p. 593; Wilkins vs. Stidger, 22 Cal., p. 233; Draper vs. Douglass, 23 Cal., p. 347; Davis vs. Davis, 26 Cal., p. 23; Harrison vs. Peabody, 34 Cal., p. 178; Stringer vs. Davis, 35 Cal., p. 25; Lyon vs. Hancock, 35 Cal., p. 373; Arnold vs. Skaggs, 35 Cal., p. 685; McFadden vs. Wallace, 38 Cal., p. 51; Geary vs. Simmons, 39 Cal., p. 224; see Sec. 2061, Subd. 4; and as to estoppels, see Sec. 1962.

Subd. 3.-Wilkins vs. Stidger, 22 Cal., p. 232; Gillam vs. Sigman, 29 Cal., p. 637.

Subd. 4.-People vs. Glenn, 10 Cal., p. 32; People vs. Lee, 17 Cal., p. 76; People vs. Ybarra, 17 Cal., p. 166; People vs. Lawrence, 21 Cal., p. 368; People vs. Sanchez, 24 Cal., p. 17; People vs. Carkhuff, 24 Cal., p. 640; People vs. Vernon, 35 Cal., p. 49.

Subd. 5.-Mateer vs. Brown, 1 Cal., p. 221; Innis vs. Steamer Senator, 1 Cal., p. 459; Gerke vs. Cal. St. Nav. Co., 9 Cal., p. 251; Garfield vs. Knight's Ferry W. Co., 14 Cal., p. 36; Burns vs. McKenzie, 23 Cal., p. 101; Neely vs. Naglee, 23 Cal., p. 152; Ward vs. Preston, 23 Cal., p. 468; Van Dusen vs. S. Q. M. Co., 36 Cal., p. 571; People vs. Trim, 39 Cal., p. 75; Grigsby vs. Clear Lake W. Co., 40 Cal., p. 396.