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pars. 21 et seq.

§ 1610. EXECUTORY CONSIDERATION. When a consid-
eration is executory, it is not indispensable that the contract
should specify its amount or the means of ascertaining it.
It may be left to the decision of a third person, or regulated
by any specified standard.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

74 C. 287, 296, 15 P. 839, 843 (construed and applied); 90 C.
373, 375, 27 P. 294 (referred to with other sections).

See post §§ 1611. 1613 and notes.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1611. HOAV ASCERTAINED. When a contract does not
determine the amount of the consideration, nor the method
by which it is to be ascertained, or when it leaves the amount
thereof to the discretion of an interested party, the considera-

885



§§ 1612-1614 CIVIL CODE. [Div.III,Pt.II.

tion must be so much money as the object of the contract is
reasonably worth.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.
90 C. 373, 375, 27 P. 294 (referred to with other sections).
See post §§1612, 1613 and note.

As tti' ■ -^-'iv P^i'jcellaneous matters as to contracts, see note
§ 1549, anlL.

§ 1612. EFFECT OF IMPOSSIBILITY OF ASCERTAINmG
CONSIDERATiOlV. Where a contract provides an exclusive
method by which its consideration is to be ascertained, which
method is on its face impossible of execution, the entire con-
tract is void.

History: Enacted March 21, 1872.

§ 1613. SAME. [POSSIBLE OF EXECUTION ON FACE.]

"Where a contract provides an exclusive method by which its
consideration is to be ascertained, which method appears pos-
sible on its face, but in fact is, or becomes, impossible of
execution, such provision only is void.

Hi.story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1614. WRITTEN INSTRUMENT PRESUMPTIVE EVI-
DENCE OF CONSIDERATION. A written instrument is pre-
sumptive evidence of a consideration.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 70 pars, annotation.

62 C. 623, 638 (construed and applied); 67 C. 536, 539, 8 P. 63,
65 (construed and applied); 68 C. 611, 617, 10 P. 179, 182 (con-
sti:ued and applied); 69 C. 611, 614, 11 P. 484 (construed and
applied with §1615); 75 C. 513, 518, 17 P. 675, 677 (construed
and applied with § 1615); 79 C. 606, 607, 21 P. 965 (construed and
applied); 85 C. 322, 327, 24 P. 636, 637 (construed and applied);
86 C. 639, 642, 25 P. 130, 131 (construed and applied); 88 C. 79,
82, 25 P. 962, 963 (construed and applied with §1615); 96 C.
106, 110, 31 A. S. 192, 30 P. 1022, 1023 (referred to); 100 C. 429,

886



Tit.T.ch.V.] BURDEN OF PROOF. § 1615

432, 433, 34 P. 1089 (construed and applied); 103 C. 97, 101, 37
P. 189 (construed and applied with other sections); 106 C. 651,
655, 40 P. 8 (construed and applied with other sections) ; 43 P.
755 (construed and applied); 111 C. 281, 284, 43 P. 899 (construed
and applied); 49 P. 719, 721 (construed and applied); 120 C.
680, 682, 53 P. 266 (construed and applied); 124 C. 577, 579, 57
P. 463 (cited with other sections); 129 C. 301, 306, 61 P.
937 (construed and applied); 131 C. 379, 383, 63 P. 692 (construed
and applied with other sections); 143 C. 528, 533, 77 P. 471
(construed and applied with other sections); 147 C. 596, 603,

82 P. 257 (applied); 3 C. A. 727, 730, 86 P. 994 (applied); 6
C. A. 163, 166, 91 P. 677 (applied to note).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1615. BURDE> OF PROOF TO INVALIDATE SUFFI-
CIEN'T CONSIDERATION. The burden of showing a want
of consideration sufficient to support an instrument lies with
the party seeking to invalidate or avoid it.

History: Enacted March 21, 1872. Said to be "not quite
clear" whether this section applies to an illegal consideration,

83 C. 173, 177, 23 P. 286.

See Kerr's Cyc. C. C. for 10 pars, annotation.

68 C. 611, 617, 10 P. 179. 182 (construed and applied with
§1614); 69 C. 611, 614, 11 P. 484; 486 (construed and applied
with § 1614); 75 C. 513, 518, 17 P. 675, 677 (construed and applied
with §1614); 79 C. 606, 607, 21 P. 965 (construed and applied
with §1614); 83 C. 173, 177, 23 P. 286, 288 (referred to); 85 C.
322, 327, 24 P. 636, 637 (referred to in dis. op.); 88 C. 79, 82, 25
P. 962, 963 (construed and applied with §1614); 96 C. 106, 110,
31 A. S. 192, 30 P. 1022, 1023 (referred to with other sections);
103 C. 97, 101, 37 P. 189 (construed and applied with other sec-
tions); 111 C. 281, 284, 43 P. 899 (construed and applied); 120
C. 680, 682, 53 P. 266 (construed and applied); 124 C. 577, 579,
57 P. 463 (referred to); 129 C. 301, 306, 61 P. 937 (construed
and applied); 131 C. 379, 383, 63 P. 693 (construed and applied
with §1614); 143 C. 528, 533, 77 P. 471 (applied); 2 C. A. 703.
708, 84 P. 244 (applied to release); 3 C. A. 561, 567, 86 P. 820
(applied); 6 C. A. 163, 166, 91 P. 677 (applied); 46 F. 564, 567
(construed and applied with other sections to notes given for
gambling debts).

As to burden of proof, see 6 Encyc. L. 763.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.



887



SS 1619-1621 CIVIL CODE. [Div.III,PUI.

TITLE II.

MANNER OF CREATING CONTRACTS.

§ 1619. Contracts, express or implied.

§ 1620. Express contract, what.

§ 1621. 'Ti..'pUf^d rontract, what.

§ 1622. What contracts may be oral.

§ 1623. Contract not in writing through fraud, may be enforced

against fraudulent party.

§ 1624. What contracts must be in writing.

§ 1625. Effect of written contracts.

§ 1626. Contract in writing, takes effect when.

§ 1627. Provisions of chapter on transfers of real property.

§ 1628. Corporate seal, how affixed.

§ 1629. Provisions abolishing seals' made applicable.

§ 1619. CONTRACTS, EXPRESS OR IMPLIED. A con-
tract is either express or implied.

History: Enacted March 21, 1872.

3 C. A. .561, 567, 86 P. 820 (ambiguously cited).
As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1620. EXPRESS CONTRACT, WHAT. An express con-
tract is one, the terms of which are stated in words.

History: Enacted March 21, 1872.

See 'Kerr's Cyc. C. C. for 3 pars, annotation.
135 C. 561, 563, 67 P. 1054 (construed).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1621. IMPLIED CONTRACT, WHAT. An implied con-
tract is one, the existence and terms of which are manifested
by conduct.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

79 C. 323, 326, 12 A. S. 145, 21 P. 852, 5 L. 233 (construed and
applied).



Tit. II.] ORAL CONTRACTS. §§ 1622-1624

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to obligation imposed by law, see Kerr's Cyc. C. C. §§ 1708
et seq. and notes.

§1622. WHAT CONTRACTS MAY BE ORAL. All con-
tracts may be oral, except such as are specially required by
statute to be in writing.

. History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

90 C. 346, 359, 27 P. 289, 292 (applied); 93 C. 493, 495, 27 A. S.
212, 29 P. 119 (applied); 115 C. 512, 515, 47 P. 250 (construed):
137 C. 239, 243, 70 P. 13 (no statute requires the contract known
as an account stated to be in writing — it may therefore be oral).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to when contract should be in writing, see Kerr's Cyc.
C. C. § 1623 and note: see Kerr's Cyc. C. C. P. §§ 1971-1974 and
notes.

§1623. CONTRACT NOT IN WRITING THROUGH
FRAUD, MAY BE ENFORCED AGAINST FRAUDULENT
PARTY. Where a contract, which is required by law to be
in writing, is prevented from being put into writing by the
fraud of a party thereto, any other party who is by such
fraud led to believe that it is in writing, and acts upon such
belief to his prejudice, may enforce it against the fraudulent
party.

History: Enacted March 21, 1872.

88 C. 434, 436 (erroneously cited for § 1624, subd. 5), 26 P.
360, 361 (correct citation).

See Kerr's Cyc. C. C. P. §§ 1971-1974 and notes.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§1624. WHAT CONTRACTS MUST BE IN WRITING.

The following contracts are invalid, unless the same, or
some note or memorandum thereof, is in writing and sub-
scribed by the party to be charged, or by his agent:

1. An agreement that by its terms is not to be performed
within a year from the making thereof;

889



§ 1624 ■ CIVIL CODE. [Div.III,Pt.II.

2. A special promise to answer for the debt, default, or
miscarriage of another, except in the cases provided for in
section twenty-seven hundred and ninety-four;

3. An agreement made upon consideration of marriage
other than a mutual promise to marry;

4. An agreement for the sale of goods, chattels, or things
in actioii, at a price not less than two hundred dollars, unless
the buyer accepts or receives part of such goods and chat-
tels or the evidences, or some of them, of sucli things in
action, or pays at the time some part of the purchase money;
but when a sale is made at auction, an entry by the auc-
tioneer in his sale book, at the time of the sale, of the kind
of property sold, the terms of the sale, the price, and the
names of the purchaser and person on whose account the
sale is made, is a sufHcient memorandum;

5. An agreement for the leasing for a longer period than
one year, or for the sale of real property, or of an interest
therein; and such agreement, if made by an agent of the
party sought to be charged, is invalid, unless the authority
of the agent is in writing, subscribed by the party sought
to be charged;

6. An agreement authorizing or employing an agent or
broker to purchase or sell real estate for compensation or a
commission;

7. An agreement which by its terms is not to be performed
during the lifetime of the promisor, or an agreement to devise
or bequeath any property, or to make any provision for any
person by will.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, p. 241; March 9, 1878, Code Amdts, 1877-8,
p. 86; by Code Commission, Act March 16, 1901, Stats, and Amdts.
1900-1, p. 408, held unconstitutional, see history, § 4 ante;
am.endment re-enacted March 21, 1905, Stats, and Amdts. 1905,
p. 611.

See Kerr's Cyc. C. C. for 232 pars, annotation..

62 C. 299, 302 (applied); 67 C. 93, 7 P. 195 (referred to); 67
C. 657, 659, 8 P. 523, 524 (applied): 71 C. 46, 47, 11 P. 813, 814
(cited); 72 C. 133, 144, 13 P. 315, 320 (applied); 75 C. 166, 169,
16 P. 766, 767 (applied); 75 C. 298, 300, 17 P. 213, 214 (referred

890



Tit. II.] MUST BE IN WRITING, WHEN. § 1624

to); 75 C. 509, 511, 17 P. 642, 643 (applied); 75 C. 525, 526, 7
A. S. 189, 17 P. 689, 690 (applied); 77 C. 279, 282, 19 P. 499, 500
(applied); 77 C. 383, 388, 11 A. S. 288, 19 P. 641, 642, 644 (referred
to); 80 C. 90, 97 (applied but erroneously cited as §1624 C. C.
P.); 13 A. S. 101 (same error), 22 P. 57, 59 (correct citation);
81 C. 205, 207, 22 P. 550, 551 (referred to); 81 C. 280, 288, 22 P.
856, 857, 858 (applied); 82 C. 533, 546, 23 P. 217, 220 (applied);

24 P. 377 (applied); 85 C. 598, 24 P. 784 (applied); 86 C. 639, 641,

25 P. 130, 131 (applied); 87 C. 115, 116, 25 P. 266 (applied); 88
C. 434, 436 (subd. 5 erroneously cited as § 1623), 26 P. 360, 361
(correct citation); 26 P. 831, 832 (referred to — contract not
within statute of frauds); 89 C. 564, 569, 570, 26 P. 1093, 1094
(construed); 90 C. 346, 358, 27 P. 289, 292 (construed); 91 C.
669, 671, 27 P. 1080, 1081, 14 L. 230 (referred to); 93 C. 493, 495,
27 A. S. 212, 29 P. 119 (construed); 96 C. 106, 109, 31 A. S. 192,
30 P. 1022, 1023 (referred to); 33 P. 884, 885 (applied); 100 -C.
26, 28 (referred to), 29 (applied), 34 P. 636; 34 P. 700, 701
(applied); 103 C. 157, 160, 37 P. 199 (applied); 106 C. 594, 600,
39 P. 946 (applied); 111 C. 281, 285, 43 P. 899 (referred to); 112
C. 634, 635, 44 P. 1060 (construed); 113 C. 432, 434, 54 A. S. 361,
45 P. 812 (construed); 117 C. 587, 591, 592, 593, 49 P. 710 (con-
strued and applied); 119 C. 239, 241 (what memorandum in writ-
ing, disclosing terms of ordinary contract for commissions, is
sufficient to satisfy statute of frauds — erroneously cited as
§1624 C. C. P.), 51 P. 333, 334 (same error); 59 P. 987, 988
(referred to): 128 C. 156, 158, 79 A. S. 36, 60 P. 764 (construed);

61 P. 578, 579 (what promise is within subd. 2); 129 C. 389, 390,

62 P. 58 (applied); 129 C. 488, 489, 62 P. 92 (applied); 130 C.
352, 356, 62 P. 555 (cited); 130 C. 411, 413, 62 P.- 611 (applied);
133 C. 475, 478, 65 P. 976 (applied); 134 C. 227, 229, 66 P. 218
(referred to); 140 C. 687, 689, 74 P. 291 (applied); 141 C. 109, 111,
74 P. 695 (referred to); 142 C. 399, 403, 76 P. 53 (applied); 143
C. 363, 366, 77 P. 71 (applied); 1 C. A. 159, 161, 81 P. 1015 (subd.
6 applied — insufficiency of memorandum as pleading'); 1 C. A.
560, 563, 564, 82 P. 568 (construed with § 2794 — exceptions to
general rule); 3 C. A. 414, 416, 86 P. 824 (construed with §2794,
subd. 2 — what promise is not void under subd. 2, §1624); 3
C. A. 554, 559, 86 P. 610 (authority to agent to sell real estate
must be in writing- — subd. 6 erroneously cited as "subd. 69");
4 C. A. 109, 112 (erroneously cited as §1624 C. C. P.), 87 P. 255
(correct citation); 4 C. A. 154, 155, 87 P. 285 (referred to); 4
C. A. 358, 359, 360, 88 P. 285 (subd. 6 applied — oral contract
invalid); 4 C. A. 403, 405, 88 P. 378 (what contract is not invalid
under subd. 4); 6 C. A. 152, 158, 91 P. 667 (referred to in con-
struing contract to will property).

As to acceptance and delivery of goods to satisfy statute of
frauds, see 49 A. D. 325; 37 A. R. 16; 96 A. S. 215.

891



§ 1624 CIVIL CODE. [Div.III,Pt.II.

As to alteration of contract by subsequent verbal agreement
being within statute, see 100 A. D. 169.

As to appointment of agent to be in writing, see Kerr's Cyc.
C. C. § 1741 and note.

As to conflict of laws as to statute of frauds, see 64 L. 119.

As to contract for sale of real property, see Kerr's Cyc. C. C.
§ 1741 and note.

As to contract to manufacture, see Kerr's Cyc. C. C. § 1740
and note.

As to couicact.v being in several writings, see 2 L. 212.

As to contracts for exchange of land, or to transfer interest
in realty, as affected by statute, see 5 L. 245.

As to contracts for sale of personalty, see Kerr's Cyc. C. C.
§ 1739 and note.

As to contracts for special orders; manufacture of ordinary
articles not according to special directions; and finishing articles
in existence; as affected by statute, see 14 L. 231, 233.

As to contracts not to be performed within one year — Effect
of statute, see 3 L. 337, 339; 7 L. 784; 35 L>. 514.

As to contracts relating to real estate — Effect of statute, see
17 A. D. 58.

As to distinction between sales of personalty and agreements
for work and labor, under statute of frauds, see 14 L. 230.

As to effect of statute of frauds upon contract between
sureties to fix their shares of liability, see 39 L. 378.

As to effect of statute on agreement to hold land purchased
on execution for defendant, see 40 A. D. 207.

As to enforcement of contracts within statute because of part
performance, see 32 A. D. 129.

As to fraudulent transfers, see Kerr's Cyc. C. C. §§ 3439 et seq.
and notes.

As to guaranty, see Kerr's Cyc. C. C. §§ 2793 et seq. and notes.

As to leases for more than one year, or to commence at a
future time, see 7 L. 671; 10 L. 726.

As to marriage settlement contracts, see Kerr's Cyc. C. C.
§ 178 and note.

As to memorandum by auctioneer, see Kerr's Cyc. C. C. § 1798
and note.

As to meiiTorandum of contract to satisfy statute, see 2 L.
212; 11 L. 97, 143; 22 L. 273.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to part performance taking case out of statute, see Kerr's
Cyc. C. C. § 1741 and note.

As to promise to answer for debt or default of another, see
5 L. 617.

As to promise to pay debt of another, when need and when
need not be in writing, see 95 A. D. 251, 46 A. R. 296

892



I



Tit. II.] WRITTEN CONTRACT, EFFECT. § 1625

As to promise to pay third person being within statute, see
25 L. 264.

As to sufficiency of auctioneer's memorandum to satisfy
statute, see 13 A. D. 398.

As to statute of frauds, see Kerr's Cyc. C. C. P. §§ 1971-1974
and notes.

As to statute of frauds as affecting sale or mortgage or crojis,
see 14 L. 233; 23 L. 449.

As to what acts may constitute part performance within
statute, see 53 A. D. 539.

As to wliat constitutes memoranda witliin statute, and l)y
whom must be signed, see 47 A. R. 532.

As to when consideration of contract is sufficiently expressed,
see 60 A. S. 432.

As to when contracts are within statute because not to be
performed within one year, see 93 A. D. 86; 43 A. R. 42.

As to wlien writing constitutes memorandum within statute,
see 7 A. D. 288, 42 A. R. 347.

As to whether contracts of indemnity are within statute, see
42 A. S. 186.

As to whetlier contracts for the purchase of property not
then in existence are within statute, see 54 A. R. 164.

As to writing of memorandum in any kind of letters and in
pencil, see 7 A. D. 288.

§ 1625. EFFECT OF WRITTEN CONTRACTS. The execu-
tion of a contract in wi-iting, whetlier the law requires it to
be written or not, supersedes all the negotiations or stipula-
tions concerning its matter which preceded or accompanied
the execution of the instrument.

History: Enacted March 21, 1872; amended by Code Commis-
sion, Act March 16, 1901, Stats, and Amdts. 1900-1, p. 408, held
unconstitutional, see history, § 4 ante; amendment re-enacted
March 21, 1905, Stats, and Amdts. 1905, p. 611.

See Kerr's Cyc. C. C. for 19 pars, annotation.

81 C. 1, 7, 22 P. 515, 516, 6 L. 219 (applied) ; -82 C. 474, 478, 23
P. 118, 119 (applied); 82 C. 533. 546, 23 P. 217, 220 (applied); 86
C. 335, 340, 24 P. 993, 994 (applied); 89 C. 617, 621, 26 P. 1101,
1102 (applied); 95 C. 568, 570, 30 P. 773 (cited); 30 P. 841, 842
(applied); 96 C. 106, 109 (referred to), 110 (construed), 31 A. S.
192, 30 P. 1022, 1023; 36 P. 121, 122 (applied); 112 C. 46, 51, 44
P. 354 (referred to); 113 C. 437, 440, 45 P. 702 (applied); 117 C.
204, 211, 48 P. 1083 (cited); 141 C. 221, 228, 74 P. 754 (applied);
141 C. 728, 731, 734, 99 A. S. 98, 75 P. 310 (cited); 146 C. 91, 97,
70 P. 850 (this section has no application until after the con-

893



§§ 1626-1628 CIVIL CODE. [Div.III,Pt.II.

tract has been executed); 79 P. 850, 851 (referred to); 150 C. 650,
654, 89 P. 600 (applied to written contract for sale and purchase
of real estate); 5 C. A. 525, 532, 90 P. 948 (construed with § 1860
C. C. P.).

As to manj^ miscellaneous matters as to contracts, see note
§ 1549, ante.

As to writing- superceding oral stipulations, see Kerr's Cyc.
C. C. § 1639 and note.

§1626. iO^TRACT IN WRITING, TAKES EFFECT
IVHEIV. A contract in writing takes effect upon its deliv-
ery to the party in whose favor it is made, or to his agent.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 5 pars, annotation.

115 C. 196, 202, 46 P. 926 (applied); 129 C. 251, 253, 61 P. 1112
(applied).

As to delivery of written grant, see Kerr's Cyc. C. C. § 1054
and note.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

§ 1627. PROVISIONS OF CHAPTER ON TRANSFERS OF
REAL PROPERTY. The provisions of the chapter on trans-
fers in general, concerning the delivery of grants, absolute
and conditional, apply to all written contracts.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

128 C. 531, 546, 51 P. 180, 61 P. 99, 548 (construed).

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to oral transfers, see Kerr's Cyc. C. C. §§ 1052 et seq. and
notes.

§ 1628. CORPORATE SEAL, HOW AFFIXED. A corporate
or official seal may be affixed to an instrument by a mere
impression upon the paper or other material on which such
instrument is written.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.
64 C. 9, 11, 27 P. 789, 790 (applied).

894



II



Tit 11] SEALS ABOLISHED. §§ 1629

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.

As to seals, see Kerr's Cyc. C. C. P. § 14 and note; see Kerr's
Cyc. Pol. C. § 14 and note.

§1629. PROVISIOIVS ABOLISHING SEALS MADE AP-
PLICABLE. All distinctions between sealed and unsealed
instruments are abolished.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 4 pars, annotation.

55 C. 564, 566 (meaning of "instrument" — it does not embrace
what)- 67 C. 447, 448, 8 P. 49, 50 (referred to); 32 P. 885, 887
(applied but erroneously cited as §1223); 100 C. 617, 622, 35 P.
328 (cited); 101 C. 522, 528 (applied but erroneously cited as
§1223) 40 A. S. 73 (same error), 36 P. 18, 20 (correct citation);
lis C. '654, 656, 50 P. 757 (construed); 129 C. 384, 389, 62 P. 64
(cited).

As to many miscellaneous matters as to contracts, see note

§ 1549, ante.



895



§ 1635 CIVIL CODE. [Div.III,Pt.II.

TITLE III.

INTERPRETATION OF CONTRACTS.

§ 1635. Uniformity of interpretation.

§ 1636. Contracts, how to be interpreted.

§ 1637. Intention of parties, how ascertained.

§ 1638. -Ti t-ntion to be ascertained from language.

§ 1639. Interpretation of written contracts.

§ 1640. Writing, when disregarded.

§ 1641. Effect to be given to every part of contract.

§ 1642. Several contracts, when taken together.

§ 1643. Interpretation in favor of contract.

§ 1644. Words to be understood in usual sense.

§ 1645. Technical words.

§ 1646. Law of place.

§ 1647. Contracts explained by circumstances.

§ 1648. Contract restricted to its evident object.

§ 1449. Interpretation in sense in which promisor believed promisee

to rely.

§ 1650. Particular clauses subordinate to general intent.

§ 1651. Contract, partly written and partly printed.

§ 1652. Repugnancies, how reconciled.

§ 1653. Inconsistent words rejected.

§ 1654. Words to be taken most strongly against whom.

§ 1655. Reasonable stipulations, when implied.

§ 1656. Necessary incidents implied.

§ 1657. Time of -performance of contract.

S 1658. Time, when of essence [repealed].

§ 1659. When joint and several.

§ 1660. Same. [In singular number.]

§ 1661. Executed and executory contracts, what.

§1635. UMFOEMITY OF INTERPRETATION. All con-
tracts, whether public or private, are to be interpreted by
the same rules, except as otherwise provided by this code.
IILslory: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 2 pars, annotation.

132 C. 18, 19, 84 A. S. 17, 63 P. 1074 (applied).

As to contracts of guaranty and interpretation thereof, see
Kerr's Cyc. C. C. §§ 2787 et seq. and notes.

As to insurance and insurance contracts and policies, see
Kerr's Cyc. C. C. §§ 2527 et seq. and notes.

896



H



Tit. III.] INTERPRETATION. § 1636

As to interpretation of contracts generally, see Kerr's Cyc.
C. C. § 1636 and note.

As to many miscellaneous matters as to contracts, see note
§ 1549, ante.



§1636. CONTRACTS, HOW TO BE INTERPRETED. A

contract must be so interpreted as to give effect to the
mutual intention of the parties as it existed at the time of
contracting, so far as the same is ascertainable and lawful.
History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 54 pars, annotation.

57 C. 476, 479 (applied); 81 C. 528, 532, 22 P. 920, 922 (cited);
27 P. 286, 287 (meaning may be proved on trial to enable court
to interpret words); 95 C. 134, 138, 29 A. S. 101, 30 P. 202
(applied); 104 C. 298, 300, 37 P. 1049 (cited); 111 C. 503, 508, 44 P.
189, 34 L. 857 (cited); 119 C. 249, 257, 47 P. 124, 51 P. 340 (cited);
126 C. 467, 469, 77 A. S. 192, 58 P. 907 (cited) ; 132 C. 18, 19, 84 A. S.
17, 63 P. 1074 (applied) ; 135 C. 28, 29, 87 A. S. 96, 66 P. 961 (applied) ;
141 C. 101, 102, 99 A. S. 33, 74 P. 699 (applied) ; 141 C. 728, 731, 75 P.
310 (applied); 149 0.178,189,86 P. 603 (primary object of all in-
terpretation is to ascertain and carry out intention of parties) ;
150 C. 39, 45, 87 P. 1097 (applied to reservation or exception in
grant); 3 C. A. 14, 21, 84 P. 220 (applied to private contract for
street grading); 3 C. A. 294, 298, 85 P. 134 (applied to contract
involving notes); 3 C. A. 591, 594, 595, 86 P. 810 (applied to
contract involving two documents); 3 C. A. 696, 700, 86 P.- 981



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