| Neb. | Jan 15, 1874
after reviewing the evidence above quoted, and as given in the record, delivered the opinion of the court as follows:
The workmanship and material in this case are conceded to be superior to the specimen copy, and the only matter in dispute is the proper construction of the contract. It is contended by the relators, that where a term having a well known meaning is used to designate the size of paper, as royal or super royal, where paper is furnished by the quire or ream at so much per quire as in this case, that they are entitled to be paid thirty-five and one-half cents per quire for each quire of royal or super royal paper used in the book, and that the provision in the contract that the paper used shall weigh forty pounds to the ream should be rejected', first, because it is a general proposition that where clauses are repugnant and incompatible, the earlier prevails in deeds and other instruments inter vivos; second, because the law is made a part of the contract by express reference, and sections seven and fifteen require that the laws shall be printed in “ royal octavo form.”
The proof clearly shown that a sheet of paper designated as royal is 19 by 24 inches in size, and that a sheet
The rule of construction contended for by counsel for the relators, applies to deeds and grants on the principle that if anything is granted generally, and other words follow that go to destroy the grant, they are rejected as being repugnant; but the rule does not apply where the words are merely explanatory, and not repugnant to the grant. Chancellor Kent says: “ the rules of construction of contracts are the same in courts of law and equity, and whether the contract be under seal or not under seal. The mutual intention of the parties is the great and sometimes difficult object of inquiry, where the terms of it are not free from ambiguity. To reach and carry that intention into effect, the law when it becomes necessary will control even the literal terms of the contract, if they manifestly contravene the purpose; and many cases are given in the books in which the plain intent has prevailed over the strict letter of the contract.” 2 Kent Com., 555.
“ If the intention be doubtful it is to be sought after by a reference to the context and to the nature of the contract. It must be a reasonable construction and according to the subject matter and motive. Sensus veriorv/m ex causa dicentis accypiendus est, et seau/nd'wm sul>jectam materiam. The whole instrument is to be viewed*310 and compared in all its parts so that every part of it may be made consistent and effectual.” Id. 555.
“ It is á true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected esa amtecendentíhus et consequentibus. Every part of it may be brought into action in order to collect from the whole, one uniform and consistent sense if that may be done.” Barton v. Fitzgerald, 15 East, 541.
In the construction of a contract, the acts to be performed under it and the manner of performance may be considered; and such a construction should be adopted as will give effect to the provisions which carry out the evident intent of the contract. Merril v. Gore, 29 Maine, 346.
In this case, if we take the entire contract into consideration, there is clearly an agreement on the part of the relators to furnish paper similar to the specimen, (which appears to have been a copy of the session laws of the tenth session of the territorial legislature) or to be at least of as good quality and weighing forty pounds to the ream.
The rule is well established that special provisions of a statute in regard to a particular subject will prevail over general provisions in the same or other statutes so far as there is a conflict; it is therefore contended that section seven of the printing act prescribing the size of the paper to be used as royal means paper 19 by 24 inches in size, and that super royal paper if used could not be folded to form more than eight leaves royal octmo, and that the relators have therefore fully complied with the terms of the contract by using royal paper 19 by 24 inches in size, although'it weighs but twenty pounds to the ream, and that the term “ royal octavo ” found in the law should prevail over the express provisions of the contract that the paper should weigh forty pounds to the
"We do not think there is any conflict between the terms of the statute and the contract. "While the proof shows that there is no such term as double royal applied to paper, it clearly appears that paper twice the size of royal, weighing forty founds to the ream, is in common use, and that paper of that kind was in fact used in printing the laws in this case.
The proof shows clearly that the sheets- 24 by 38 inches required by the contract, should be cut into two sheets, 19 by 24 inches, before folding and stitching, and we are of the opinion that allowance should be made for the folding and stitching of each of such sheets. This is also in accordance with the finding of the court below.
The answer admits that the relators are entitled to waste on press work and paper, but claim that the relators are not entitled to more that two per cent, therefor. On the is'sues made by the pleadings the court should have found the amount of waste to which the relators are entitled under the pleadings and proof, and as the proof upon this point is conflicting the cause must be remanded to the district court with instructions to find the amount due relators for waste upon press work and paper.
Judgment accordingly.