For example, if one uses the annotation to FIRE 406 as a guide, evidence regarding custom and usage in a particular industry is admissible evidence under the rule to assist the trial court to determine the meaning of an ambiguous contract. See Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). Likewise, the annotation points to evidence of custom and practice within a particular industry, group, or organization as being admissible under the rule as evidence "bearing on the standard of care in determining negligence."
A release is ambiguous if it is fairly susceptible to more than one meaning. See Vickers v. North American Land Developments, Inc., 94 N.M. 65, 607 P.2d 603, 606 (1980); Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). In holding that the release was unambiguous, the district court relied on the similarity of the language of this release to the release in Johnson v. City of Las Cruces, 86 N.M. 196, 521 P.2d 1037, 1037-38 (Ct.App. 1974).
"A contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions." Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). The enumerated provisions, read together, are susceptible of only one interpretation.
A party is not bound by custom and usage without actual knowledge of it or unless it is so general or well known in the community as to give rise to a presumption of such knowledge. Edward E. Morgan Co. v. United States, 230 F.2d 896 (5th Cir. 1956); Major v. Bishop, 462 F.2d 1277, 1280 (10th Cir. 1972) (must have "ample" evidence to support knowledge of custom and usage). Defendants have failed to show knowledge on the part of the debtor of the custom in Montrose County of acquiring gravel only when it is paid for and hauled away. Without such a showing, custom and usage cannot be used to supply provisions with respect to which the written instrument is silent.
Language in an instrument is unambiguous only if it is reasonably and fairly susceptible to but a single meaning. Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972). The context is a motion for summary judgment and the court is obligated to view the facts and factual inferences in a light most favorable to the non-movant and most favorable to the existence of triable issues.
A contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions.' Major v. Bishop, 462 F.2d 1277, 1279 (10th Cir. 1972). Reading the disputed words in the context of the whole agreement, it cannot be said they are susceptible of a requirements contract construction.
A disagreement over the meaning of specifications does not necessarily indicate an ambiguity — the contractor's interpretation must be reasonable and the contract must be fairly susceptible to different constructions. See Levenson, 106 N.M. at 401, 744 P.2d at 176; see also Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972). To be reasonable, an interpretation must be consistent with the contract language: the language of the entire contract must be considered, and selected portions cannot support a claim of ambiguity.
NMSA 1978, § 55-2-723(2). See also NMSA 1978, § 55-2-202 (terms may be explained or supplemented); Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972) (consideration of custom and usage in the trade under § 55-2-205); Bowlin's, 99 N.M. at 671, 662 P.2d at 672 (Ct.App. 1983). The only term that cannot be supplied by the court is the quantity term.
A contract is deemed ambiguous only if it is reasonably and fairly susceptible of different constructions. Major v. Bishop, 462 F.2d 1277 (10th Cir. 1972). The mere fact that the parties are in disagreement on the construction to be given does not necessarily establish ambiguity.
The phrase itself is reasonably and fairly capable of different constructions, and it is, therefore, ambiguous. See Major v. Bishop, 1972, 10 Cir., 462 F.2d 1277. In addition to an examination of the express terms of an agreement, the Code also encourages resort to course of performance ( 11 M.R.S.A. § 2-208), course of dealing ( 11 M.R.S.A. § 1-205), and usage of trade ( 11 M.R.S.A. § 1-205).