But if the instrument under consideration is ambiguous on its face, and remains so after extrinsic evidence of the situation and surrounding circumstances has been received, a patent ambiguity still exists and in such case no further evidence could be adduced, and the contract would be void.

A latent ambiguity exists when a contract seems certain and intelligible on its face, but an ambiguity arises in applying its terms to the subject matter or parties. A latent ambiguity, because it arises by extrinsic evidence, may always be removed by extrinsic evidence. Thus, if a deed is made to John Smith, and there are father and son by that name, it may be shown by extrinsic evidence which one was intended. Mortgaged property, when indefinitely described, may be identified by oral testimony. The evidence in such cases does not contradict or add to the writing, but merely identifies what was intended. Misdescriptions in deeds or other contracts, when clearly proven, will usually be corrected by the courts.

Some of the ordinary rules of interpretation adopted by the courts are the following: Written instruments are considered as a whole, and when there are several instruments, they will be considered together. Ordinary meaning is attached to words and phrases used by parties, unless it can be shown that they were used in a technical sense. When custom in a certain line of business has attached a peculiar meaning to a term, and the generality of the custom is shown, such meaning may be shown. Every part of an instrument will be given effect if possible. A construction which will work an injury or absurdity, or which will result in a forfeiture, will not be favored. Words omitted, if their omission clearly appears, may be supplied, words and phrases may be transposed in order to effectuate the intended meaning, and improper punctuation, spelling or grammar will be disregarded.

Fraud and mistake.-There must be no fraud in regard to the subject matter, nor mutual mistake. The effect of fraud on a contract is discussed in the chapter on Fraud; as to mistake, see the section on Agreement.

Lawfulness.-Contracts which violate positive law, or are immoral or otherwise against public policy, are void. This subject is discussed in the chapter on Illegal Contracts.

Impossible contracts.-A contract which is impossible

of performance is void. This is well illustrated by a Wisconsin case. A agreed that in consideration of B's purchasing eighty acres of land "I bind myself that the said eighty acres of land shall sell on or before the first October next for $200 or more." The Supreme Court says: "From an inspection of the contract it is obvious that it is not such a one as is obligatory on either party. There is no reciprocity of benefit and it binds the defendant to a legal impossibility, so palpable to the contracting parties that it could not have been seriously intended by the parties as obligatory on either. The undertaking of the defendant is that plaintiff's tract of land shall sell for a certain sum by a given time. Is it not legally impossible for him to perform this undertaking? Certainly no man can in legal contemplation force the sale of another's property by a given day, or by any day, as of his own act. . . . If the contract had been that the tract of land would be worth $200 by a given day, then it might have been recovered on, if it did not rise to that value in the time." Another illustration of a contract impossible of performance would be that of two persons to marry each other, when one of them is already married. However, if a married person agrees to marry one who is single, and the single person is ignorant of the other's disability to marry, the former would be liable in damages for breach of contract. The impossibility of performing a contract must arise from what is known in the law as an act of God, the public enemy, or from the law itself. The fact that a contract is difficult of performance will not excuse performance. For example, if a man living near a body of water should contract to deliver to another a certain quantity of ice by a certain time, intending at the time to cut the ice from the body of water near which he resides, but the weather should be so unfavorable as to make it impossible to cut the ice, he would not be excused from performing his contract, but would have to procure ice elsewhere and deliver it, or would be responsible in damages for breach of contract. If the contract had specified that the ice was to be cut from the particular body of water, under the the above circumstances, performance would be excused. The distiction between impossibility and extreme difficulty of performance should be kept in mind.

A contract may be perfectly legal and possible of performance at the time it is made, and become illegal or impossible

of performance subsequently. Thus, where one undertook to build machinery into the building of another, which was destroyed by fire before the work was completed, it was decided by the court that both parties were excused from a further performance, and the one who had done the work not having reached the point at which he was entitled to be paid, was allowed nothing. A contract for the performance of personal services may become impossible of performance by reason of the sickness or death of the party agreeing to render them; in such case the law would excuse performance and grant compensation for the services rendered at what they were reasonably worth. In case of an entire contract for the erection of a building, for instance, the subsequent impossibility of performance would not render the purchaser liable pro tanto, as a complete performance is a condition precedent to

recovery.

"When, therefore, in the ordinary case, parties agree that the one shall do a thing for the benefit of the other, who shall pay so much money for the doing, and their agreement goes no further, their words exclude the supposition that either of them contemplated the interposition of God or of a public enemy, or of the law, to put performance above and beyond human power. On the coming of such impossibility, performance has ceased to be a thing of human contemplation; it is no longer the subject of any bargain other than the one which the parties have by the terms of their contract carefully excluded therefrom, namely, for the one to make good this loss.... The law may adjust the rights of the parties, but the contract has no relation to the facts; therefore, it is to be treated as void for want of matter on which to operate."

By "act of God" is meant some manifestation of nature to which man has not contributed, such as lightning and the fire it kindles, cold, or a tempest or flood, but not fire from an ordinary accident. By the "act of the public enemy" are meant the ravages or restraints of war, but not of a robber or a mob. Destruction by an ordinary fire will not excuse performance. Thus, if a house being built by a contractor should be destroyed by fire, and the agreement was that it was to be paid for on completion, he must complete his contract by re-building. Again, if a printer agrees to supply a given number of copies of a book and his establishment is destroyed

by fire before his contract is completed, his contract remains unfulfilled.

Parties may by express contract, however, agree that impossibility of performance shall not excuse either party from responsibility for performance; that is, that the party not performing shall become responsible in damages although it is impossible for him to perform.

Alteration of written instruments.-A leading work on the law of contracts gives the rule on this subject as follows: "One in possession of a written contract is required both by duty and common prudence carefully to preserve it. If, while a party is endeavoring to discharge this duty, a third person gains unlawful access to the writing and alters or destroys it, or if with innocent purpose the party himself makes some alteration therein not prejudicial to the other party or varying its meaning, his rights under it will not thereby be impaired. But if he commits its custody to one who materially alters it in his interest, or if he authorizes another so to alter it, and it is done, or, if he does it himself, he forfeits, by this bad faith or want of due care, whatever the contract gave him. Yet if it has already taken effect, and his rights have become vested, no alteration of the defunct contract can revest them in the other party.”

It has been decided in Wisconsin that the mere fact of alteration or interlineation in an instrument does not call for explanation if the appearance of the writing and ink are such as to indicate that the whole was written at the same time and by the same hand. If the alteration, however, appears to be in a different ink or in a different handwriting, it must be explained before it can be received as evidence. The date of a promisory note is material, and if altered with the consent of the payee, and without the maker's consent, it becomes void. An alteration of a written contract which in no way changes the legal effect thereof as between the parties thereto is immaterial and does not avoid it. For instance, affixing the name of a witness to a contract after delivery is not a material alteration. An endorsement on a note "This note to be extended if desired by the makers" being too indefinite to have any legal meaning, does not affect the note.

The point to be borne in mind in regard to alterations in written instruments is that only such an alteration made by

a party to an instrument or one who is authorized to act for him, as will change the legal rights of the parties thereto will make the instrument void at the option of the party not consenting to such alteration. After such an alteration has been made, the restoration of the instrument to its original condition will not make it good.

Entire and divisible contracts.-A contract is entire when it must be completely performed before there can be any recovery on it. It is divisible when it has two or more subject matters which are not necessarily related to each other, and which can be independently performed. The question of whether a contract is entire or divisible may arise in cases where suit is brought for a part-performance and it is claimed by the defendant that no recovery can be had because the contract sued on is entire. An entire contract must be completely performed before a recovery can be had, whereas a divisible contract can be sued on whenever one divisible portion of the subject matter has been completely performed; if it is divisible and not completely performed, the party not performing becomes liable in damages for nonperformance of the remainder. Most contracts are entire. Whether a contract is entire or divisible depends entirely on its terms.

A contract whereby a party agreed to put a furnace into a house and guaranteed that it would heat the whole house to 800 with a reasonable consumption of fuel, is entire, and if it fails to comply with the guaranty, no recovery can be had. A contract to carry 5000 bushels of grain is an entire one, and a recovery cannot be had for carrying less than that quantity if the shipper stood ready to furnish the entire amount for carriage. A hired man's contract to work for a certain period, even though he be paid by the month, is entire, and if he leaves without cause or excuse before its termination, he cannot recover his wages. A contract to furnish and erect a building for a specified sum is entire. If the contractor fails to complete the building, he cannot recover, even though the owner completes it himself. A contract to deliver a specified number of barrels of flour in lots of 100, each lot to be paid for on delivery, is not entire and a recovery may be had for each lot delivered. A contract to deliver 1000 cords of bark at a stipulated price per cord, 300 cords in June, 350 in July and 350 in August, is not