The SCHUYLKILL NAVIGATION CO. against MOORE, 2 Whart. 477

The opinion of the court was delivered by Gibson, C. J. The best construction is that which is made by viewing the subject of the contract, as the mass of mankind would view it; for it may be safely assumed 'that such was the aspect in w'hich'the parties themselves viewed it. A result thus obtained, is exactly what is obtained from the cardinal rule of intention; of which many instances might be adduced. By it, a tenant is restrained from changing the nature of the thing demised, even to the enhancement of its value.

Equity has enjoined him from converting a corn-mill into a fulling-mill, and a meadow into an orchard, and from making other alterations entirely consistent with the' letter of the contract; because it was supposable, from the ordinary course of things, that the property would be used for the purposes to which it was adapted. In Bonnet v. Sadler, (14 Ves. 526,) the lessee was prevented from turning a mansion into a coach-maker’s shop; and in Douglass v. Wiggins, (1 Johns. Ch. 435,) from turning a private house into a store.

It is true that in the first of these, the lease had been procured by representing that the house would be occupied as a dwelling; and in the second, that improvements were to be made conformably to the wishes of the lessor; but where the parties ai-e silent, the presumption that the thing is to be applied to its accustomed úse, is as powerful as an explicit representation. By any other standard of

interpretation than the course of things, a parlour might be turned into a barber’s shop, and its character depreciated without any change of its construction. A recurrence to ordinary habits and uses for a meaning which has been obscurely expi-essed, is as frequent in respect to other transactions, as those quoted ; and how stands the construction of the contract, as it is affected by it, in the case before us 1 In hydraulics, the effect of an adjutage was known ; and it is said that the grantor was consequently bound to guard against the use of it, if it were meant to be precluded.

The proof is, however, that it was known almost exclusively to men of science. But actual knowledge of it was brought home to certain members of the company: Still a corporation is not to be affected with the private information of individuals among those who compose it. Even actual knowledge would be no criterion. In the cases quoted, the lessor knew that a mansion might be turned into a work-shop ; yet he was not required to know that the lessee would attempt it, and to guard against it by. a prohibitory clause.

As to the argument on the words of the grant, that every thing ‘ can pass/ which can be made to pass, it is enough to say that the word relied upon, however emphatically enunciated, expresses no more than is signified by ‘will’ or ‘ may;’ and that an unassisted effusion could not have been more aptly defined. A grantee may make as much profit of the thing, as it has capacity to produce; but he may make it, so far as the grantee is concerned, only by an application of it to its ordinary uses promoted by the ordinary means.

May he not however avail himself of discoveries to make it more valuable in his hands 1 He may doubtless avail himself of any thing which, in its results, works no alteration in the substance of the contract. An artificer employed at stipulated wages, may use subsequently invented machinery, though the effect of it be to make his wages inordinately high, because the ratio of compensation for which his employer bargained, is not disturbed by it; but he may not avail himself of means not in ordinary and familiar use at the time, to the prejudice of another.

For instance, a purchaser of coals at the pit’s mouth, for so much the cart load, might not introduce a railroad to increase the burthen—at least he would be bound to pay in proportion to the increase. The application of improvements to alter the relative advantages of the contracts would be a perversion of it. Now the proofs were clear that an adjutage had never been used to transmit water from a penstock to a wheel. The patentee of the invention testified that the application of it to that use, was exactly what he 'claimed as an original invention; and his patent is posterior to the contract.

Indeed it is impossible to imagine a reason why it should have been used. The end to be gained by it, can be more cheaply gained by simply enlarging the aperture than by applying an apparatus to it. It is of convincing importance that the improvement, so to speak, can benefit the owner of it only by being applied to gain a surreptitious advantage from a contract which would not have been made had the purpose subsequently attempted to be accomplished by it, been suspected.

In expounding a statute, as in expounding a contract, recourse is had- to the qualities and condition of the thing to be affected, as it existed in popular contemplation. Thus it was ruled in the United States v. Tenbrnok, (2 Wheat. 248,) that rectified spirits were not dutiable as a product of distillation, because rectification, though strictly a process of secondary distillation by which alcohol is produced in its highest state of concentration, is rio.t distillation in the sense to which Congress had. regard.

A convergent principle of that case, is that the defendant might not lawfully have produced pure alcohol by a continued process of distillation in the first instance, and have paid duties on it in proportion to its volume when contracted—else he might have gained an advantage not intended from the increase of its volume in reducing it again to the standard of market proof. What else is insisted on here, but a right to pay in proportion to the volume of the stream only at the point'of its greatest contraction, instead of the point of its escape.

It is of no consequence that by a contrivance unheard of before, the point of contraction and -the point of escape, were brought together. The defendant alleges that he purchased, not the efflux of an aperture, but a vein of specific dimensions; and that he has not his quantity if it be of less dimension than the prescribed diameter in any part of its course.

What would be said of a pretension, on the other side, to measure the quantity by the diameter of the column after it had passed fhe point of contraction and gained its utmost expansion Í The defendant would think it very unreasonable; but it is not more so than what he claims by his own

interpretation. The plaintiff however claims only for the average diameter guaged, in the terms of the contract, by a metallic aperture of given dimensions ; and that its product, without regard to subsequent expansion or contraction, be taken for the thing granted. The defendant contends that such was, in fact, the aperture used, being the shortest diameter of a tube placed in the perforation of the pen-stock. Its place however is immaterial, ás it would have delivered the same quantity had it been placed elsewhere.

To measure the quantity by an aperture of increased power, however placed, would be inconsistent with the spirit of the contract. ' But the apparatus used was inconsistent not only with its spirit, but its letter; for an aperture, in common parlance, is one thing, and an aperture with a tube in it, is another. Beside, an aperture equal in space to a given number of square inches, must be rectilinear; for till the quadrature of the circle be discovered, the diameter of a circle equal in content to a given square, willmot be found.

The hydraulic inch, is a circle whose diameter is an inch; and the recurrence to the square inch for purposes of specification in the contract, seems to indicate the shape of the aperture. But the question is to be determined, not by principles of science, but by common experience directed to the discovery of intention. The plaintiff purchased, and the defendant sold, a given power deliverable in the ordinary way; and on the ground of legal construction reserved at the trial, to say nothing of the fact found, the recovery was clearly proper. Rule discharged.