Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/257

The law necessarily steps in to explain, and construe the stipulations of parties, but never to supersede, or vary them. A great mass of human transactions depends upon implied contracts, upon contracts, not written, which grow out of the acts of the parties. In such cases the parties are supposed to have made those stipulations, which, as honest, fair, and just men, they ought to have made. When the law assumes, that the parties have made these stipulations, it does not vary their contract, or introduce new terms into it; but it declares, that certain acts, unexplained by compact, impose certain duties, and that the parties had stipulated for their performance. The difference is obvious between this, and the introduction of a new condition into a contract drawn out in writing, in which the parties have expressed every thing, that is to be done by either.^[1] So, if there be a written contract, which does not include every term, which is ordinarily and fairly to be implied, as accompanying what is stated, the law performs the office only of expressing, what is thus tacitly admitted by the parties to be a part of their intention. To such an extent the law acts upon contracts. It performs the office of interpretation. But this is very different from supposing, that every law, applicable to the subject matter, as a statute of limitations, or a statute of insolvency, enters into the contract, and becomes a part of the contract. Such a supposition is neither called for by the terms of the contract, nor can be fairly presumed to be contemplated by the parties, as matters ex contractu. The parties know, that they must obey the laws; and that

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1. Ogden v. Saunders, 12 Wheat. R. 341, 342.

vol. iii.32