185 S.W.2d 276 | Ark. | 1945
Lead Opinion
Appellant was the plaintiff in the lower court. He sued appellee (defendant below) for insurance commissions lost because the appellee refused to buy insurance from appellant on the Southern Hotel building in Fort Smith. At the conclusion of the evidence for the plaintiff the circuit court directed a verdict for the defendant; and this appeal challenges the correctness of that order.
The plaintiff was engaged in the real estate and insurance business in Fort Smith, and negotiated the sale of the Southern Hotel building from the owner to the Fort Smith Realty Company, in which the defendant was interested, and for whose obligations it is claimed that the defendant is liable. The Fort Smith Realty Co. made a written proposal to the owner to buy the property for a stated consideration, with part to be cash and "the balance of twenty-six thousand ($26,000) dollars by purchase money note or notes secured by deed of trust or mortgage on above-described property, in form satisfactory to the seller, with interest from date of settlement at the rate of 4 1/4 per cent., payable semi-annually. The said note or notes to be paid as follows: In equal semi-annual principal installments plus 4 1/4 per cent. interest amortized over a period of fifteen years. Purchaser to have the privilege of paying any or all of balance at any interest paying period by giving sixty (60) days' notice."
The Fort Smith Realty Company, as a part of the transaction, wrote the plaintiff a letter, agreeing that if the owner sold the property to the Fort Smith Realty Company, then it would pay Bailey "as a commission, $500"; and, furthermore, agreed in the letter: "We also agree for you to write all insurance during the period of *186 the 15-year term." It is this last quoted sentence that caused the lawsuit and this appeal.
The owner sold the property to the Fort Smith Realty Company in July, 1941, and that company paid Bailey the $500 commission, and accepted the insurance policies from him for one year as written by him, and paid the premiums thereon. Some time before July, 1942, the mortgage for $26,000, for the balance of the purchase price as hereinbefore referred to, was paid in full by the Fort Smith Realty. Company; and in July, 1942, the defendant (acting for and as the realty company) refused to accept any further insurance policies from the plaintiff when they were tendered. Thereupon the plaintiff filed this action for his commissions on the insurance policies tendered, and also his commission on policies that might be tendered for the remaining thirteen years.
Many interesting questions are argued in the briefs, such as mutuality, extent of disclosure of agent to principal, and liability of persons who subsequently incorporate. We find it unnecessary to discuss these matters in detail, because of the views hereinafter expressed. There is sufficient mutuality in this case under the law as announced in Wilkes v. Stacy,
I. The Contract was Ambiguous. The trial court should have submitted the case to the jury to determine the meaning of the contract between the parties. When a contract is definitely shown, and the language therein *187
contains no latent ambiguity, it is the duty of the court to construe the contract. But, when the contract has a latent ambiguity, the question of the meaning of the contract should be submitted to the jury. Dorr v. School District,
"The rule of law is that where a written contract is ambiguous in whole or in part, the meaning thereof should be left to the jury. Jones v. Lewis,
"The lower court's construction of the instant contract was that it is ambiguous in that it failed to state whether appellees should pay $50 per day for each day they kept the drilling rig or $50 per day for the days they actually used the outfit in completing the well. This ambiguity existed in the writing, and the court correctly submitted to the jury the question of the meaning of the language employed in this particular."
There is no distinction between the case of Agey v. Pederson, supra, and the case at bar. Here the contract said: "we also agree for you to write the insurance during the period of the 15-year term." To what did the language, "period of the 15-year term," refer? The appellee contends that it referred to the period of the life of the mortgage, which was 15 years, with the right of payment *188 at any time; and that when the mortgage was paid within the year, then the appellant lost his right to any further insurance. The appellant contends that the language was intended to mean 15 years at all events, regardless of the payment of the mortgage. The contract thus contained a latent ambiguity, and the question of the intention and the meaning should have been submitted to a jury under the proper instructions of the court.
II. Res Judicata. Since the cause is to be remanded for new trial under the instructions herein contained, we think it fitting that we consider the matters in this section and in III, infra. We point out that the judgment, on the jury's verdict on the question of the meaning and intention of the contract, will be res judicata on that question in any successive action for damages based on the same contract. Nat'l Surety Co. v. Coates,
III. Recovery, if any, in this Present Case is Limited to the Damages Caused by Defendant's Refusal to Accept Policies Tendered in July, 1942. The case at bar comes within the rule set forth in Mfrs. Furn. Co. v. Read,
It must be remembered at all times that the plaintiff sues for damages and not for commissions. Even if we consider the plaintiff as an insurance broker, the rule is as stated in 32 C.J. 1090, to-wit: "But where by custom of business a broker's compensation comes from the company in the shape of a commission or percentage upon the premiums paid, one who employs an insurance broker to obtain insurance does not thereby incur any liability to pay the broker commission as such, at most he impliedly agrees to accept the insurance when procured and pay the premiums thereof, and thus enable the broker to earn his commissions from the company, and in case of a breach of such agreement the broker's remedy against such person, if any, is for damages for precluding him from earning the commissions, and not for the commissions themselves."
It follows that the judgment in the case at bar is reversed, and the cause is remanded with directions to submit to the jury for determination: (1) Whether by the language "during the period of the 15-year term" it was intended and meant (a) the period of existence of the mortgage indebtedness, or (b) fifteen years, regardless of the mortgage indebtedness; and if (b) be found by the jury, then, (2) What damages the plaintiff suffered by reason of the failure of defendant to accept the policies actually tendered in July, 1942. Also on a new trial there may be submitted to the jury the issue (if relevant) concerning full disclosure of agent to principal, as well as other fact questions.
For the reasons stated, the judgment is reversed, and the cause is remanded with the directions herein contained, *190
Dissenting Opinion
I cannot agree with the majority view. The foundation of this action as based upon the letter of June 6, 1941, which, omitting formal parts, is as follows: "We, Fort Smith Realty Company, agree to pay you as commission five hundred ($500) dollars, if and when the Massachusetts Mutual Life Insurance Company agree to sell the property known as 609-11 Garrison Ave., being a part of lots 2 and 3, block 25, City, Fort Smith, Ark., known as the Haglin property, for the sum of thirty-one thousand ($31,000) dollars. We also agree for you to write all insurance during the period of the fifteen-year term."
It seems to me that this agreement is entirely lacking in mutuality and is too indefinite to be enforced. Obviously, there are no provisions in this contract obligating appellee to carry insurance on the property in question for any certain time or for any amount, and there is no obligation on appellant to write such insurance. The cost of the insurance is not specified and could not be definitely determined for the reason that the owner had the right to determine the amount, if any, to be carried. The agreement is indefinite and uncertain and is not capable of being made certain and therefore is unenforceable.
This court in Ashley, Drew Northern Railway Company v. Baggott Boyd,
The agreement, as I view it, is totally lacking in mutuality and is also unenforceable for this reason. In El Dorado Ice Planing Mill Company v. Kinard,
For these reasons, I think the alleged damages could not be measured for the alleged breach of the contract. Appellant, under this agreement, which is not susceptible of being made certain, should not be permitted to recover upon an arbitrary and unwarranted assumption that any specific amount of insurance would have to be carried on the property in question for every year of the fifteen-year term referred to. I think no such obligation was imposed by the letter, supra, and I can find no basis for measuring the damages, if any, occasioned by appellee's refusal to permit appellant to write the insurance beyond the first year.
The judgment should be affirmed.
I am authorized to say that Mr. Justice McHANEY concurs in this dissent. *192