143 P. 234 | Utah | 1914
The plaintiff, appellant in this court, brought this action to recover a commission which he alleged he had earned under a certain contract which is set forth in and made a part of
The first contract, which is dated September 8, 1911, after stating the parties thereto', reads as follows:
“Witnesseth: That the said parties of the first part by these presents give to the said second parties the exclusive option to purchase the following described real estate, and improvements, located in Salt Lake County, Utah, to-wit (fully describing same), for the sum of nine thousand dollars ($9,000.00), payable in the following manner, to-wit: Twenty-five dollars cash, the receipt of which is hereby acknowledged, and eight thousand nine hundred seventy-five dollars ($8,-975.00) on or before thirty days from the date this contract is signed, time being of the essence of this contract. Said second parties agree to pay $100.00 toward taxes, etc. If the. said $8,975.00 shall not be paid within the limit of the thirty days, then the said second parties shall forfeit all moneys heretofore paid as liquidated damages and this contract shall be declared at an end and of no further effect. In case a bona fide sale is on an extension of fifteen days will be allowed.
‘ ‘ The parties hereto have hereunto set their hands and seals this 8th day of September, 1911. And said parties agree to pay five per cent commission for selling said property.”
The second contract was executed October 18, 1911, and is worded precisely like the first one, except that it is admitted that fifty dollars had been paid; that the remaining $8,950 was to be paid “on or before November 15, 1911”; and, further, that “said first parties agree to convey said property by warranty deed free and clear of all incumbrances, and furnish an abstract of title continued to date hereof. They, the said first parties, further agree to pay a commission of five (5%) per cent on the selling price of said property.” Thue-son is also omitted as a party from the second contract.
A general demurrer was interposed to the complaint, which was overruled, and, the respondents failing to plead further, a judgment by default was entered against them. Upon respondents’ application, however, the default judgment was set aside, whereupon they moved the court to dismiss the action for the reason that the complaint failed to state a cause of action, which motion was granted, and the complaint was dismissed, and judgment entered accordingly.
We shall treat the motion to dismiss as a general demurrer.
The only information we have respecting the ground upon which the trial court based its decision is found in respondent’s brief, where, in referring to the contract sued on, counsel say:
“The instrument itself discloses no principal and no agency; it merely discloses the fact that an option was given to purchase within a certain time the property mentioned*213 therein. This was onr theory of the matter when we appeared for trial, and the lower court adopted onr theory.”
It is apparent, therefore, that the trial court was controlled by what it determined the rights of the parties were under the contract, as it construed it,.rather than by the allegations of the complaint. In other words, the court looked’ to the provisions of the contract as it construed them alone, and in doing so arrived at the conclusion that the contract merely gave the appellant a right or option to purchase the property in question at a fixed price within a specified time, and, inasmuch as he did not allege that he had exercised the option and had tendered the purchase price within the time specified, therefore he could not recover, regardless of the other allegations contained in the complaint. > If appellant, under the contract, was limited to a mere right to purchase the property in question for the price and within the time stipulated, then the court’s ruling is right. If, however, the contract gave appellant the right to sell the property to others at the price and within the time specified in the contract for a five per cent commission, then, in view of the allegations in the complaint, the ruling, in our judgment, cannot be sustained.
“When a contract is ambiguous and open to construction, the true end to be reached is to ascertain what the parties intended, and when that intention is found it prevails over verbal inaccuracies, inapt expressions, and the dry words of the stipulations. The court should, as far as possible, place itself in the position of the parties when their minds met upon the terms of the agreement, and then from a consideration of the writing itself, its purpose, and the circumstances surrounding the transaction, endeavor to ascertain what they intended and what they agreed to do; i. e., upon what sense or meaning of the terms used, their minds actually met. The purpose of all rules for the construction of contracts is to aid in ascertaining the intention of the parties from a construction of the whole agreement.”
In other words, the rules of construction should be considered as servants, and not as masters, and thus one rule should not be given undue prominence while another is given but slight or no effect.
“Since a contract is to be construed as a whole, terms which can be inferred from a consideration of the entire instrument are as much a part of the contract as if expressly set forth therein.”
The same thought is expressed in another form by the Supreme Court of Washington in the case of Noon v. Mironski, 58 Wash. 453; 108 Pac. 1069, where it is said:
“If the contract by its conditions and legal effect invests a party with a right, it is the same as if the right had been expressly stipulated in the instrument.”
“Parol evidence is admissible, in the construction of contracts, to define the nature and qualities of the subject-matter, the situation and relation of the parties, and all the circumstances, in order that the courts may put themselves in the place of the parties, see how the terms of the instrument affect the subject-matter, and ascertain the signification which ought to he given to any phrase or term in the contract which is ambiguous or susceptible of more than one interpretation; and this, although the result of the evidence may be to contradict the usual meaning of terms and phrases used in the contract; but, if the words are clear and unambiguous, a contrary intention may not be derived from the circumstances.”
See, also, 1 Elliott on Evidence, Sections 576-605. For a further discussion of tbe subject respecting tbe construction of contracts and tbe rules relative thereto see Caine v. Hagenbarth, 37 Utah 69; 106 Pac. 945.
It is also a well-established doctrine that one and tbe same person may enjoy the privilege of purchasing, and at tbe same time have tbe right of selling on commission, either personal or real property. See eases referred to in tbe ease of Neighbor v. Realty Ass’n, 40 Utah 619; 124 Pac. 523.
We remark that appellant cannot recover the fifty dollars he paid upon the two contracts. That amount was paid as part consideration for the privilege he obtained in the contract, and he could only claim it as part of the purchase price had he himself purchased the property.
The judgment is reversed, and the cause is remanded to the District Court of Salt Lake County, with directions to reinstate the case and permit the respondents to. answer the complaint if they are so advised, and to proceed to hear and determine the case upon the issues joined and in accordance with this opinion.
Costs to appellant.