2.
If a contract be so vague in its terms, that its meaning cannot be
certainly collected, and the statute of frauds preclude the
admissibility of parol evidence to clear up the difficulty; 5 Barn.
& Cr. 588; S. C. 12 Eng. Com. L. R. 827; or parol evidence cannot
supply the defect, then neither at law, nor in equity, can effect be
given to it. 1 Russ. & M. 116; 1 Ch. Pr. 123.
3.
It is a maxim of law, that, that is certain which may be made certain;
certum est quod certum reddi potest Co. Litt. 43; for example, when a
man sells the oil he has in his store at so much a gallon, although
there is uncertainty as to the quantity of oil, yet inasmuch as it can
be ascertained, the maxim applies, and the sale is good. Vide generaly,
Story, Eq. El. 240 to 256; Mitf. Pl. by Jeremy, 41; Coop. Eq. Pl. 5;
Wigr. on Disc. 77.
CERTAINTY,
pleading. By certainty is understood a clear and distinct statement of
the facts which constitute the cause of action, or ground of defence, so
that they may be understood by the party who is to answer them, by the
jury who are to ascertain the truth of the allegations, and by the court
who are to give the judgment. Cowp. 682; Co. Litt. 308; 2 Bos. &
Pull. 267; 13 East, R. 107; Com. Dig. Pleader, C 17; Hob. 295. Certainty
has been stated by Lord Coke, Co. Litt. 303, a, to be of three sorts
namely, 1. certainty to a common intent 2. to a certain intent in
general; and, 3. to a certain intent in every particular. In the case of
Dovaston.v. Paine Buller, J. said he remembered to have heard Mr.
Justice Ashton treat these distinctions as a jargon of words without
meaning; 2 H. Bl. 530. They have, however, long been made, and ought not
altogether to be departed from.
2.
- 1. Certainty to a common intent is simply a rule of construction. It
occurs when words are used which will bear a natural sense, and also an
artificial one, or one to be made out by argument or inference. Upon the
ground of this rule the natural sense of words is adopted, without
addition. 2 H. Bl. 530.
3.
- 2. Certainty to, a certain intent in general, is a greater degree of
certainty than the last, and means what upon a fair and reasonable
construction may be called certain, without recurring to possible facts
which do not appear; 9 Johns. R. 317; and is what is required in
declarations, replications, and indictments, in the charge or
accusation, and in returns to writs of mandamus. See 1 Saund. 49, n. 1; 1
Dougl. 159; 2 Johns. Cas. 339; Cowp. 682; 2 Mass. R. 363 by some of
which authorities, it would seem, certainty to a common intent is
sufficient in a declaration.
4.
- 3. The third degree of certainty, is that which precludes all
argument, inference, or presumption against the party, pleading, and is
that technical accuracy which is not liable to the most subtle and
scrupulous objections, so that it is not merely a rule of construction,
but of addition; for where this certainty is necessary, the party must
not only state the facts of his case in the most precise way, but add to
them such as show that they are not to be controverted, and, as it
were, anticipate the case of his adversary. Lawes on Pl. 54, 55. See 1
Chitty on Pl. 235 to 241.
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