*1 185 So.2d J. KUHN
Jacob ESTATE PLAUCHE REAL A.
STAN Inc. COMPANY,
No. 47948.
March 1966. May 2,
Rehearing 1966. Denied Orleans, Dowling, New A.
Richard petitioner-appellant.
Landrieu, Kronlage, Maurice Calogero & respondent. Landrieu, Orleans, for E. New SUMMERS, Justice. estate commission for real is a suit
This
A.
agent, Stan
real estate
in which
fa-
Inc.,
judgment in its
Plauche,
obtained
Mat-
Anthony
trial court
in the
vor
land.
prospective seller
rana,
appeal to
was affirmed
the actual
between
Circuit, 178 ference
Appeal, Fourth
the Court of
sell
could
Plauche firm
at which the
296.
So.2d
property.
background of
present
properly
To
adjudication,
presented
problem
day,
separate instru-
in a'
the same
Oh
facts more
recite
necessary that we
*2
signa-
ment,
the
firm obtained
the Plauche
the
detail.
than
usual
to
agreement
an
Kuhn to
of
ture
Jacob J.
$52,-
sum of
property for the
purchase the
Anthony Matrana
6, 1961
On November
stipulated.
000,
which were
on credit terms
he
in which
Authorization”
a
signed
“Sale
the
of
by
purchaser
deposit
the
of
A
Inc.,
10%
Plauche,
real
a
A.
employed Stan
required,
$5,200, was
purchase
or
price,
par-
Orleans,
sell a
to
New
firm of
estate
the
in
forfeited
be declared
which could
in
de Montluzin
Faubourg
in
cel of land
com-
to
(Kuhn) failed
purchaser
event
providing
Parish,
contract
Orleans
'purchase.
agreement
to
ply with the
to
net
“$46,000.00
be for
to
the sale was
1962,
4,
January
Thereafter,
on
but still
com-
be
net shall
owner,
above
monies
all
to
“Agreement
retyped the
firm
for
Plauche
tp
to be
was
sale
agent.” The
mission
as
printed form
on an identical
Purchase”
here-
terms
any other
or
“or for
cash
omitting the name
by Kuhn,
signed
the one
upon.”
after
its stead
in
typing therein
Kuhn and
to advertise
proceeded
then
.V
per written
Purchaser as
“Agent for the
sign
a
by placing
for sale
property
A.
Stan
my files,” below which
original in
circulating pros-
thereon,
and
preparing
firm, signed his
Plauche,
of the
President
pro-
and,
property
generally,
pectuses of the
capacity. This
in
name
ordinary course
inoting'its
in
signed an
to Matrana who
submitted
A.
Mr. Stan
During
time
this
business.
these words:
in
acceptance
thereon
firm,
estate
visit-
Plauche,
real
head
and
its terms
accept
in all
the above
“I/we
transaction
discuss the
to
-Mr. Matrana
ed
respect
to
With
conditions.”
good will.
promote his
to
and
in
inserted
had
document
this
commission
signed
1962,
4,
Matrana
January
Then on
"see
these words:
appropriate blank
for
question
in
to sell
>anoffer
sell,”
reference
meaning that
agreement to
n
terms
“43,000
to
under credit
owner”
net
the other
to one or
should be made
*3
children,
rana,
his minor
obtain
as tutor of
Fourth-,
appeal
Matrana’s
to the .
Circuit
property
court authorization to sell the
trial,
resulted in an affirmance of the
,co,prt
the
under
the
and
of
terms
conditions
judgment.
“Agreement
signed by
Purchase”
Kuhn
Accordingly
peti-
accepted by
a
and
him.
granted
ap-
certiorari on Matrana*s
We
appropriate
was addressed to
court
tion
the
plication, 248 La.
due to ex declarations of the In his concise' brief to this' court argues simply was no the effect that the commission too Matrana’s counsel that much, paid due fact that the due until and also to the commission was to be the and, place, worth more act no felt that the was of sale took as there was sale, $52,000 (based appraisal on an which no commission was due. than petition made), he had caused to be upon position is based lan- This certain seeking was withdrawn. the authorization the, agreement January guage .of. dated .whereby pay all tendering a The time mer allowed. M.atrana jnonies “Agreement . above chantable the. under selling title of. having agreement been January 4, having ex as Purchase” of commission—this no sale As place. took the sale until due into the by reference incorporated upon which the condition por- place, the printed take did accepted. Matrana which predicated the commission question, payment insofar of in agreement tion here, and, commis- occur;' no therefore contention did Matrana’s affects it as collected. be could sion provides: however, firm, agrees to for the Counsel accepted, seller is offer “If this ' language printed quoted, by monies all asserts commission agent a pay the earned is commission price, selling of the contract $43,000.00 of above by both agreement signing of upon the is earned commission which adding maintains parties. both He further signed is this when be shall if commission loan(s) proviso mortgage a when parties and way in no sale act of here- at the paid in cash Either been secured. any, has passing, upon the terms the commission conditions comply fails to to who mutually merely a act, states co- fails to but who accepted, or offer, if method Estate, time and acceptable and convenient Real A. Plauche Stan operate with loan, is the commission. payment of mortgage securing the Inc., in pay the agrees obligated and by the is earned say a commission To costs fees and all commission the time agent at collections enforcing in curred on (which parties by both signed typewritten.) portion (Italicized damages. mortgage 4, 1962) and when January (there secured been any, has final if loan(s), as document in the Appearing because here be secured portion no loans to were the entire stipulation after mortgage), and carry the agreed to seller sentence: typewritten following is the instrument same stipulate also act agent at pay the agrees to “Seller pay the agrees seller in cash." commission the, amount sale at in cash the commission amount of argument paradox. sale, create counsel’s understand As we act to be for a typed purpose sentence this final serves no behalf takes contrary until a payable anything to earned if supersedes *4 the act “at payable A fair is if it place. contract. For portion of printed that before payable certainly it is sale” permits sentence, says, he reading therefore, these follows, time. commission, because interpretation that ’ be reconciled. provisions must consistent sale,” the act payable “át 93 94 elementary principles unusually high ($9,000 in An
Under contracts, por terpretation plus $1,500 attorneys’ fees) the written resulted to the portions prevail printed judgment. tions over real the trial estate court therefore, conflict; and, we judge recognized are in this fact and two The trial type difficulty holding approve no of the minor’s find refused to the sale com providing that written sentence interest of it. Mr. Kuhn observed because sale” paid “at the act of high mission would be him commission caused providing suspersedes away clause and de- back the transaction from deposit is earned when mand after the commission the return of Pisciotta, accepted. v. Dean Matrana’s time to a merchantable offer tender (1952) Appeal and au 725, elapsed. ob- 220 La. So.2d 591 title had The Court of 57 reasoning “hardship obviously cited. This served that this was therein thorities type provision disregard the un- only the which case.” And we cannot leaves already dissenting remaining. As we have usual circumstance which written observed, Appeal is to noted re- the Court of because premature lating sale” it is to Matrana’s to reduce the “at the act of $46,000 $43,000, sale from thus in- that time. payment before to demand very day crease the commission on the many factors which There are when an offer of was obtained interpreta adopt persuade this strict us to satisfactory explanation A Kuhn. for this believe this result. We tion and reach adverse turn is lack- of events for Matrana agreement in this Matrana understood the ing. In view of the fact outset, ambiguity or At the fashion. representing firm was from the language contradiction which existed in the inception negotiations, fiduciary against of the contract must be construed relationship require between them would La. prepared the contract. who explanation. some La. Civil Code art. 1958. 1958; Muse v. Met Civil Code arts. assigned, For the reasons Co., ropolitan La. 192 So. Life Ins. 193 annulled, reversed and set aside. Landry (1939); A. L. R. 1075 St. Meyers, La. Ann. Bank v. State FOURNET, J., HAWTPIORNE, C. Sons (1898);
So. 136 Ernest A. Carrere’s J., concur in the decree. Rumore, 1951). (La.App. So.2d require law In this case that rule of would interpret McCALEB, J.,
us dissents with written Plauche interest. reasons. *5 McCALEB, comply hereto who (dissenting). fails with the Justice * * * offer, accepted, terms of this if typewritten provi- agree I that the cannot obligated agrees pay agent at agrees to that “seller sion commission and all fees costs incurred of commission sale the amount
the act of
enforcing
damages.”
collections and
has
a condition which
cash” constitutes
printed agree-
superseding the
the effect of
Article
of our
provides
Civil Code
commis-
parties that the
ment between
“Legal agreements
having the effects
agent
time
hy
at the
sion is earned
upon
parties,
parties
law
none but the
signed.
purchase is
sale and
abrogate
modify them”;
can
or
hy
paradox
created
holding that
In
courts
give legal
are bound to
effect to all
ma-
agreement the
provisions
these
such
according
contracts
to the true intent
appraise
realistically
jority simply fail to
parties
of the
and that “the intent is to be
provisions.
between the two
the difference
contract,
determined
the words
For,
earning of a
with the
one has to do
when these
explicit
are clear and
and lead
and the
rendered
services
consequences”..
no absurd
solely
payment of
relates
time of
other'
not, under
obligation.
The latter should
Application
principle
of this
and the
guise
interpretation, he converted
explanatory rules set forth in codal articles
operates to
to a so-called condition which
1946, 1947, 1948, 1950, 1951 and 1955 is
stipulated
deprive
agent
value
of the
majority’s
destructive of the
strained con-
reason of
rendered
services
typewritten
clusion that the
clause—that the
comply
inability to
seller’s failure or
paid
commission will be
at
time of the
obligation.
contrary,
On
abrogates entirely the ob-
sale—somehow
rewrites the contract
done the Court
ligation
compensate
agent
real estate
clause,
date on which
which refers to the
(admittedly
for his services
earned accord-
payment
previously incurred
on a
due
ing
printed stipulation)
to the
because the
obligation,
contractual
to read that the debt
sale could not be consummated due to the
the sale is consum-
does not exist .unless
obligor’s
inability
(seller’s)
furnish a
mated no matter
the breach
whether
merchantable title.
.executory agreement is
to the fault of
due
edict,
party. Thus, by
evident,
reading
either
this erroneous
from a
of the
It seems
agent
paid
majority opinion,
services
is not to be
the Court is much
notwithstanding
specific
rendered
another
the confection of the second
concerned with
provision
agreement whereby
“Either
Ma-
listing
of the
exclusive
trana
to reduce the
list
in the interest of justice.
However, suspicion supplant cannot
pleading proof and the' case must be presented.
determined on the issues Ma-
trana not does claim fraud. In fact he did appear
not even at the trial below and take Yet, stand in his own behalf. the ma-
jority opine that “We believe Matrana un- fashion”,
derstood the in this
(meaning, course, that he believed no
obligation was incurred to a realtor’s consummated)
commission if a sale was not though
even he did testify (and prob-
ably would have been allowed over
timely objection testify) concerning
intent and belief that he was not liable. fine,
In apparent it is that this deduction majority emanates its own
speculation and, surely, not from the evi- which,
dence elicited, even if it had been purely
would have been self-serving. respectfully
I dissent. notes receive Matrana was to . providing November agreement of following: The loan .No portion the sale. credit of. should commission providing Un- others. negotiated with be 'needed $46,000 net to all over amounts consist agreement Matrana-was der seller, or the or dif- landowner equal to the commission firm a «9 - by January pired, against signed Kuhn instituted suit sell con- Plauche firm Matrana for the return providing that the commission should and $5,200 deposit net to held Plauche. sist of all amounts over against Plauche then reconvened Kuhn and landowner or seller. Matrana, alleg claim filed a cross days deposited later Kuhn Several ing one or the breach $5,200 required by “Agreement Pur- other, or, alternatively, that it was entitled signed. which he had chase” interest, $9,000, to a known the Plauche then became attorney’s costs and fees. The reconven only firm Matrana had a Bond for Kuhn, tional demand was dismissed as prop- whereby purchase Deed he was judgment in favor for the there was his erty; executing the Bond for and that since Although deposit $5,200. amount of the — time, had Deed on October wife represented by he was counsel at the died, daughters minor became and his two appear person or testi Matrana did not in Bond with a one-half interest fy behalf; vested in his own therefore, necessary, for Deed. It was rendered in of the Plauche favor 'firm a merchantable title to order to tender $9,000, plus $1,500 the commission of attor ' ''1 '(cid:127) 1 prospective purchaser (Kuhn), that Mat- neys’ fees and costs.