*1 SUPREME COURT OP MISSOURI, Co¡. State ex rel. Morrison Inv. v. Trimble. February pleted provided feed as of had 1,1915, (as provide) the instant contract does time “the completion feed for of this work shall be extended actually length for such of time as the contractor necessarily prevented pursuing said work general employees, reason of bad weather, a of his strike ’’ injunction against could him, the Sun days should be counted think out?' We not. The instant February (in words), cdntraet does not fe 1,1915 as the date completed, which the work must be does but it just definitely fe using the time as as would have been done “February the words fix 1,1915.’ The intent was to a date within which an act Completing must done. any prior work at time date feed the con fulfills completing any tract, but it at time after the feed date up obligations. does By using measure to the contract working might a sufficient force work have been fin very ished much shorter time than the time-limit wayside. but this is The contract completed fixes a time-limit within which the work must be definitely as if day, it had mentioned the the month year. Sundays In such situation fall within the terms of the time-limit, cannot be out order counted to extend the time-limit. of the Court of conflicts with at’least some of the opinion, cases cited in the general concur,
this rule of the law. I therefore afore- said. rel. MORRISON ex
THE STATE INVESTMENT H. COMPANY v. FRANCI TRIMBLE S et al., Judges Appeals. Kansas Banc, 1923. November Terms: Evidence Parol Real Estate: CONTRACT: Sale of con- Mortgage. Ambiguity: Plaintiffs in Excess Price OCTOBER TERM, 1923. ex rel. Morrison Inv. Co. v. Trimble. appointed tract a real “for estate to sell described price net.” At the time there was property, $700 on the and in a suit to recover a balance claimed *2 to plaintiff permitted testify be due under a sale to that was negotiations leading up making the to the the it of contract was clearly understood for and that sold the was to be enough pay expenses plaintiff pay to off the and to and $4,000 Held, addition. that the did not in admit- trial court err ting net,” explanation “$4,000 evidence in the of the nor was words plaintiff’s contrary testimony admission of that to the rule parol vary alter, evidence is or not admissible" to contradict add the terms of a written instrument. by "WHITE, dissenting, Held, J., between one agent seller, and the and and the not one between the seller purchaser, wholly agent’s commission, and related to and nothing “$4,000 there is be con- the words nét” can existing mortgage, to and the strued include an admission vary evidence instrument would error. to be Ambiguity: Thousand Net: Parol Evidence. -: Four Dollars may ambiguity constituting a latent Words in a written contract n always contract, explained by parol testimony; if the and subject meanings, concerning terms, rea- different to conclusions, ambiguous, may opposite it and minds reach sonable ascertaining purpose admitted outside evidence for ap- parties. aof words intention of the ambiguous, “$4,000 pointing net” are lands an to sell for definitely nothing more', since, it cannot be said whether expenses $4,000 in addition to be sold expenses mortgage, existing the encumbrances or whether Appeals paid $4,000; ©f in so and the Court out were ruling decision court. no contravened .this dissenting, WHITE, J., net” Held, the words ambiguous, to. receive seller mean but not expenses; agent’s commission above the warranty good agreement and sufficient “to make of the seller himself clear meant that he in case of sale deed” property of all encumbrances. Appeals Appeals: A Court Interference. 3. CERTIORARI: right in a case issues involved determine inherent has ruling long appellate jurisdiction, no it makes so has of which Court, Supreme like decisions with former in conflict Supreme can- Court case; no such conflict there is and where wrong. right rulings, they be or whether such interfere with SUPREME COURT MISSOURI, OP Certiorari. Preliminary discharged. rule Bogie & M. Paul Sebree,
Sebree Mord Wm. Pinkerton for relator.
(1)
overruling
erred
as-
below)
signments
(appellant
of error made
relator
vary
change
admissibility
to the
ruling
terms of a written
and in
so
controlling
of the Court of
conflicts with
de-
Supreme
cisions
Court in the
of McPherson
cases
v.
Herryford
Kissee,
Mo.
Turner,
Tracy v. Union Iron
Crim,
Works,
Mo.
Crim v.
*3
Myers,
(2)
162
544;
Mo.
Beheret v.
“On March response defendant the office of the called at following con- into the entered advertisement there : tract “ consider- ‘To L. Morrison Inv. for and in W. Co. receipt acknowledged, I dollar, ation one appoint you hereby exclusive to make sale of the in Block and 10, herein described as Lots 9 Brooklyn 20th as 2210 E. Hill Addn. Known Co’ds price following terms of $4,000 for the net St. thereon $--, cash secured $-cash, at-per hereby for--years cent, applied accept deposit purchase authorized to binding my price, contract for sale on and to execute a behalf. “ dis- ‘In described is sold or case above agree specified, posed make the time I of within good warranty purchaser and sufficient deed to the same complete required; title, abstract to furnish if *4 may you that have and retain it shall and is proceeds arising per com- cent from the from such sale no price; per cent on of all of mission the above property over and for which said is sold consideration property specified, price said sold in case above through you any person, or other within said time either you per pay promise in that cent on the then case I whole amount which said be sold. SUPREME COURT OF MISSOURI,
State ex rel. Morrison Inv. Coi v. Trimble. “ ‘ until This contract to continue June 1920 and thereafter until terminated notice unto by giving ’ days notice in writing. “ Thos. Sandbrook. ‘(Signed) “ ‘(Signed)----Witness.’
‘‘The contract on form. printed The word and net’ de- figures ‘$4,000 inserted in long were hand over Sandbrook, Plaintiff, fendant. Thomas testified, defendant’s to defendant’s objection, that going’ officehe one Colvin and he cash saw told him wanted $4,000 for his property; mortgage there it first com- was for $700; that approximately before any mission could be earned defendant would be for it to sell the off necessary property for enough to pay and to mortgage give said plaintiff the sum of $4,000 in cash in addition; that Colvin then plaintiff turned said over to another employee of defendant and latter told the up to write the contract, the latter plaintiff telling employee the same he had told Colvin. This employee then wrote up and said plaintiff signed it. was owned both who were plaintiffs, husband and wife. The signed husband in- to bifid tending his wife as well as himself and his wife ’’ ratified the acts her husband.
I. Relator urged that the trial court admitt- erred in explanation ing evidence of.the words net,” as did the holding affirming same and ambiguous. words He further urges the evidence introduced, relative to the $700 to be received is in conflict with addition, the rule of law enunciated in this court in McPherson v. 239 Mo. Kissee, 664; Herryford v. Turner, 67 Mo. Tracy v. Union Iron Works, 104 Mo. Crim v. Crim, Beheret v. Myers, 58,Mo. deciding parol evidence is inadmissible to add alter, or vary contradict terms of written since all instrument, prior contem- poraneous verbal agreements; to the .subject-mat- relating ter, merged the written The above cases *5 TERM, OCTOBER ex Inv. rel. Morrison Co. v. Trimble. he upon by-relator, controlling, with which relied the is in con- the contends in appeal. to this direct The facts came court flict, case entirely the case are different from the facts in each findings right clearly in at and this court was bar, therein. repre- supra, defendant Kissee,
In McPherson v. agreed to land he sented his written contract that the mortgages, exchange aggregating subject $5,- to two show inadmissible to 000. The court held evidence mortgages Having a mentioned third of $803. readily the the thereto could agreements the that the contained all assume regarding mortgages. Herryford supra,
In Turner, after a sale of estate under a but the execution of trust, deed of before purchaser at the deed trustee, defendant, the plaintiff. sell the land to At re- sale, quest plaintiff’s of the and with consent, defendant plaintiff. directly executed trustee the deed At the land deed, time of the sale and the execution of the knowledge. to defendant’s for taxes, was- encumbered brought As paid suit Plaintiff to recover. taxes and containing execute deed defendant did privity warranty, impliedly held, least, the court at parties. did not between the exist supra, plaintiff Tracy v. Iron Works,
In Union piece granted lease to certain defendant a .a City. plaintiff recover sued to rent, Kansas alleging filed a due, counterclaim, defendant admitted but agreement part plaintiff on the breach of a verbal put premises railway switch connect nearby. instru- court that a written held railroad varied or contradicted cannot, ment by rule, added agreements. contemporaneous prior oral supra, aon Crim v. suit was instituted Crim, up foreign judgment. ex answer fraud in the sets (obiter dic- the court there note, ecution held SUPREME COURT MISSOURI, OE turn) rule invariable the ab- law, that, anis *6 parol evidence inadmissible mistake, of fraud or sence vary a written contract. The court to contradict or though execution fraud that even there be judgment constituting could the cause of action, note * collaterally. not be attacked brought supra, plaintiff Myers, for suit Beheret performance convey specific contract land.- of a provided with- wished to The contract that if defendants advance from market or draw the above agency price, they agreed give written notice days prior Upon thirty to such withdrawal or advance. parol from the trial the defendants evidence introduced might that both be inferred- sides assumed plaintiff. prior at an to the sale to end ambiguous, there court held that the -contract not parol no for evidence room left construction, was inadmissible.
Reading ambiguous the above it is evident cases, expressions, calling explanation, words or an not are totally They to be found the contracts. based distinct state of from facts the case under consideration. unquestioned
It anis rule law, adhered this to in jurisdictions, and other evidence inadmis- vary sible to alter, add contradict aof terms also, unquestioned written instrument. It is rule constituting law words, a latent am- biguity, may explained by written or oral extrinsic evidence. question pres- for determination is whether uncertainty ambiguity. contract is
ent free If clear explanatory extrinsic definite, evidence, of its may not be terms, of, received aid construction or in- terpretation. language on the other If, hand,.the is so clear ambiguity, and definite as be free from then may extrinsic evidence be received to ascertain the true parties and.gather meaning intent of the purport. its subject If, terms, it is meanings, to different con- Vol. OCTOBER TERM, 1923: cerning opposite may con- which reasonable minds reach then outside reach clusions, be admitted to parties what the intended. may fairly hon think that
We reasonable minds estly regarding differ intended what use of the words net.” It cannot be said, interpreta certainty, requires what the mean. It words plain tion to understand whether the words mean that go way, leav tiffs were to receive ing in cash and their $1,000 expenses and encumbrances to taken care charges or whether mean others, used words and liens were to come out of Inter cash. preting parties, the intention of the without more, merely in “net” surmise. word must have been *7 purpose. purpose only serted for a That be ascer could through object tained pretation inter extrinsic evidence. The of gather ex
is to the intention of the pressed writing. writing in clear the is not Where plainly express parties, and does not intention of the surrounding resort cir had to the situation and gather expressed. meaning cumstances to Construing as there meaning in before us, Its capable being tention proof. is of revealed without ambiguous. language used is uncertain Its ty by only facts, can definitely determined outside explanatory Co., [Linseed of Paint terms. Co. v. Laclede Const. Co. v. Tie Moss Co., Mr. 25.]
The trial court and the found that language ambiguous. used was uncertain and explanation use of of its terms rulings therefore this accord with the laid down long promulgated court. law As as the court no rule of ruling which could be said to conflict with a former of right is court, this it had the inherent to determine the ruling right wrong. sues involved, whether its Ry. Garey [Howland v. 134 Mo. l. c. Co., Jackson, Farrington, 148 S. l. c. 982; W. State ex rel. v. 195 S. W. 618.] Lavelle v. Insurance 231 S. l. c.W. Co., COURT ÓE MISSOURI, SUPREME v, Trimble. Inv. Co. State ex rel. Morrison of of II. think the decision Court We in conflict is not therein on facts stated based im- ruling any previous writ court. The this Railey quashed. providently therefore and is issued, líigbee, concur. GG., foregoing opinion PER CURIAM:—The Davis, opinion adopted hereby
C., Division Two except judges White, All concur, Court in Banc. J., dissents. who (dissenting). from the I dissent WHITE,. J. —I. approving
conclusion reached Davis, C., Appeals. the Kansas for convenience construed, conlraot ConteacfU°US reproduce, I is as follows: Co. for and consider Morrison Inv. “To W. L. receipt acknowledged, of which of one dollar, ation hereby appoint you exclusive make sale I herein described as Lots 9 and in Block Brooklyn 20th Addn. Known as E. St. Hill Co’ds e pric following terms: net f thereon $--cash, cash secured $-, o r hereby years at--per author cent, deposit applied purchase accept on to be ized to my price, binding to execute a contract for sale behalf. *8 disposed property case above-described or
“In sold agree specified, pur- the time I to of within make the good warranty a and to chaser deed the same sufficient complete required; if abstract of title, and to furnish you shall have and it is and re- proceeds arising per tain such sale no cent from per price; commission the above and cent all property which said the consideration sold of over and for price specified, case above said through you any is person, within either sold said or other time, promise per pay you then in that case I to cent property may on the whole amount which be sold. for OCTOBER TERM, 1923. “This contract to continue until June 1920, giving thereafter until terminated notice unto days’ agent in-writing.' notice
“(Signed) Thos. Sandbrook. “(Signed)----- Witness.” holding by the Kansas ambiguous terms that this contract was in relation to the respect is erroneous. In that clear sale, the contract is parol explanation. acquainted and needs no One with the real estate business understand at once that convey his seller, Thomas the title to Sandbrook, was to pay for four thousand dollars and no commis- agent get pur- sion the his commission from ; was purchase price go chaser. All that was to to Sandbrook, might portion pay against of it he whatever use debts place. solely compensation The contract to the relates agent should receive for services rendered. It has noth- ing do with the state the title nor incum- with the Sand-, against property, except provides brance it purchaser good brook “make the shall sufficient warranty deed,” of course which, that he will clear means all incumbrances. It not a contract with stipulation purchaser, and that that the was inserted so specific might purchaser. make a contract with the necessary purchase price It to mention in the except determining as a basis amount the. commission. The net” inserted pen printed probably clarify in the was intended to form, contradictory regard statements agent’s one to the commission, effect his commis- any sion should consist of amount over above price of $4,000, the other to the effect that he re- should per purchase price. stipu- ceive five cent of the two These conjunction might lations, connected with the “and,” require payment understood to of two commissions. The precludes understanding. insertion of Probably net” “4,000 printed way form in that so that one *9 MISSOURI, COURT OF SUPREME ex rel. Morrison Inv. Co. Trimble. provision Instead -be out. conld stricken the other “$4,000 net.” The intention inserted that Sandbrook govern. parties, entire'contract, as shown interpretation dispute feature as to the is no There controversy claim arises over of the contract. The payment net” excludes Sandbrook by him context incumbrances, whereas the his entire it relates to the commission. shows pur- no offered Further, II. evidence was pose showing expression that the used “$4,000 net,” as agent’s mean- in real contract mere than estate had one explanation. contrary, required ing, or that On parol only evidence offered not for the Parol clearing up ambiguity, purpose of an but for Evidence. purpose proving different contract one. The evidence admitted tended from the entered into show that before understanding’ reduced different reached to holding writing. such admissible, City con- of the Kansas conclusion rulings trary repeated only of. this those court; petition, long in relator’s but a line mentioned of which may not be that a written contract modified hold by parol changed all and cases which hold evidence, prior negotiations merged a written into into. afterwards entered I dissent
For these reasons from the conclusion judg- by the learned think Commissioner, reached ment should Kansas. quashed.