74 Colo. 524 | Colo. | 1924
delivered the opinion of the court.
If in the complaint there are commingled in one statement or count, elements of two different grounds of recovery: one, fraudulent representations; the other, as
On its face the language of the contract is not plain. It is ambiguous. One clause or sentence provides a fee of ten per cent on all collections and settlements made without legal process on claims, which include both notes and accounts, not over two years past due, and fifty per cent on accounts two years or over past due, and notes four years, or over past due, where settlement is made through collector, etc. Were the complaint silent upon the subject of the assurances of defendant’s agent, we think a fair construction of the language of this contract is that the smaller fee was intended to be for collections of all claims, both notes and accounts, two years or under past due, when made without legal process; and the larger fee of fifty per cent for collection of accounts two years or over past due, and notes four years or over past due, where a settlement is made through a collector, etc. As the claims in question were promissory notes and were two years or under past due, the collection fee for them, by the plain terms of the contract, is ten per cent of the amount, and falls within the first part of the compensation provision. The provision for a fifty per cent commission is not applicable to the notes which the plaintiff sent to the defendant for collection and which were collected. Notes and accounts, when they are sent to a collection agency, where
The allegation in the complaint as to the assurances by defendant’s agent, does not constitute an attempt by parol testimony to vary the terms of an ambiguous written instrument. Parol testimony responsive to this averment simply tends to show that the parties themselves, before the contract was executed, gave to it a certain construction of which the language itself is susceptible. The complaint discloses that the agent of the defendant had the apparent power to make this contract for his principal and to give the assurance to the plaintiff as to its meaning. The plaintiff was justified in so believing and both accepted the contract with that construction and both are bound by such construction. Defendant may not repudiate the authority of his agent to represent him when he knowingly accepts the fruits of the contract. In such circumstances he takes the contract with its burdens as well as its benefits.
Just what the relief should be we are not called upon at
Mr. Chief Justice Teller and Mr. Justice Sheafob concur.