84 Ark. 431 | Ark. | 1907
(after stating the facts.) First. It is obvious from the provision of the contract, to-wit: “Said contingent commission to be first computed on August 1, 1906, and at the end of each year thereafter,” that the parties to it contemplated that the contract might last more than one year. Yet the provision following this, in paragraph “ninth,” shows that the parties did not make this time for the computation of the contingent commission of the essence of the contract, because in this latter provision the right to terminate the contract by either party on thirty days’ notice is expressly reserved. And payment “in that event” of compensation as provided in paragraph "fourth” shall be made, and'will be in liquidation of all payments to the party of the second part by the party of the first part. The last paragraph must be taken to qualify the preceding one, and the two. together mean that, if the contract should continue till the first of August, 1906, and for years thereafter, the time for the computation and settlement of the amount due under the provision for a contingent commission should be the first day of August of each recurring year that the contract continued. But, if it should be terminated earlier, then the computation of the contingent commission should be made, and settlement thereof had, at the time the contract was terminated. The basis of the computation as to the amount to be paid for the part of the year while the contract is in existence is the same as if the contract had continued for the full year. The only difference is that when the contract is terminated the settlement must be made then of all that is due under it. And when the contract is ended all commissions by way of compensation are due, and the computation of the amount and the payment thereof cannot be postponed.
This is the only reasonable cpnstruction of which the contract is susceptible, when all of the terms of the two paragraphs are considered. It is our duty, in arriving at the intention of the parties, to give force and effect to all the provisions, and every word, if possible. The language, as a whole, should, if possible, be so construed as to make the apparently conflicting provisions reasonable and consistent, and so as not to give one of the parties an unfair and unreasonable advantage over the other. 9 Cyc. 579, 583-587 and authorities cited. Kelly v. Dooling, 23 Ark. 582; Railway v. Williams, 53 Ark. 58.
It follows that the court was correct in concluding that the computation should be made and the settlement had as of the day of the termination of the contract.
Second. As we construe the contract, the amount of the contingent commission should have been computed on the following basis: Appellees should have been allowed a commission of ten per cent, on the premiums on business written by them at the time of the termination of the contract, less “expense, reinsurance, return premiums, and losses” that had accrued at that time. This would show the profits of the business at that time, and is according to the very terms of the contract. It is insisted by appellant that the amount should be still further reduced by the unearned premiums; that there could be no showing of profits unless the unearned premiums were taken into the account. But the answer to this is that by the plain terms of the contract the parties have specified that the profits are to be estimated by what remains “after deducting all expenses, reinsurance, return premiums and losses.” Having undertaken to enumerate the things that should be considered, the things not mentioned can not be supplied by inference or intendment, for the very terms of the contract show that the parties had in mind the things that they intended should govern in fixing the basis for the estimate, and the mention of these necessarily excluded others not mentioned. If no mention had been made of the things to be deducted, and the contract had read that “a contingent commission of ten per cent, was to be paid the parties of the second part on the profits of the business,” then it would have been a matter of proof aliunde as to what should be deducted in order to ascertain whether there were profits. But here the contract has fixed the definite standard; and, as appellant has written the contract, in case of doubt the words will be construed against it. 9 Cyc. 590; Leslie v. Bell, 73 Ark. 338; Allen-West Com. Co. v. Peoples’ Bank, 74 Ark. 41.
The burden of proof was on appellant. It adopted an erroneous theory as to the time when the contingent commission was to be computed and settled under the contract, and failed in its proof to show that appellees had received more than the contract authorized.
Judgment affirmed.