190 Ky. 262 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming.
On. August 30, 1919, appellee and defendant below, W. E. Cook, signed and delivered to appellant and plaintiff below, Oliver T. Wallace, a written contract authorizing the latter to sell the farm of the former situated in Garrard county and containing about 500 acres. The contract is in the nature of a letter addressed to plaintiff at his home in Wilmington, North Carolina. It is on a printed form with blanks filled with pencil writing and interlineations and erasures made in the same way. In its completed form, omitting address and signature, it reads:
“Being desirous of selling my land, same being below described, to-wit: About 500 acres on old Danville pike near Lancaster, Ky., I hereby plaice in your hands, exclusively, until 60 days with the understanding that you are to offer same for sale at auction, within before the 15th of September, days from this date i you to do such advertising as you may deem necessary, in the way of prizes, newspapers, handbills, circular letters, posters, etc., to furnish advance man, auctioneer, and ground mán to show prospective bidders the strong points of the lots or tracts and endeavor to induce them to bid on same.
“You agree to do the necessary surveying, cleaning, staking and diagraming, and to lend co-operation in making the sale a success. You are to furnish a man to superintend the developing of the property without any cost to ine for said superintendence, and are to determine the size, number and character of the lots or tracts. Whenever a map or drawing is submitted showing’ the layout of the property I agree to place a minimum price on each lot or tract, the total minimum prices to aggregate $250.00 per acre. You are to sell the property subject to confirmation, and I agree to confirm the sales on the following basis: Any tract that brings the. minimum price or above.
On the back of the contract defendant wrote and signed this stipulation: “I agree that the minimum amount to be received by you in event of no sale shall be $250.00.” Among the written insertions in the printed form are the expressions “60 days” and, “before the 15th of Sept.” In the printed form of the contract it is stated that plaintiff might sell “privately or at auction” but the words “privately or” are stricken out with a pencil mark through them so as .to make the contract provide for only a “sale at anetion” and it must be “before the 15th of Sept.” After the execution of the contract plaintiff fixed his auction sale for September 12, 1919, and pursuant to the right conferred upon him in the contract he divided the entire tract into seven separate parcels or lots and caused a plat to be made showing the various subdivisions, together with the number of acres in each, and after this was done and before the sale, defendant placed a minimum, price per acre on each of the seven lots or subdivisions of his farm so as to make an average minimum price of its entire acreage, the sum of $250.00 per acre as stipulated in the contract. The minimum price of lots numbers 1, 2, 3 and 4 was $275.00 per acre and on lots numbers 5, 6 and 7, $210.00 per acre. Lot number 3 contained the residence of defendant and upon the adjoining lot number 2 was located a barn and other outbuildings on the farm. Lot number 1 on the day of the sale was ■offered first and it sold for $285.00 per acre and then lot number 3, upon which was located the dwelling, was offered and it sold for $277.50 per acre. No bid for either of the other lots amounted to a sum equal to the minimum price fixed thereon by defendant; but he in
In his petition he alleged that on the day of the sale and before it was commenced or before it was completed (it does not appear which) he and defendant entered into an oral agreement to the effect that if defendant should confirm and accept the sale of any lot or lots for which the highest bid was less than the minimum price fixed thereon, then and in that event, plaintiff was to receive 3% of the entire amount of the sales in lieu of “all over minimum price any tract brings” as stipulated in the written contract. A demurrer was sustained to the petition and plaintiff filed two amendments, the substance of which was that when the writing was executed defendant stated that he did not intend to confirm or accept any sale below the minimum price which he might fix on any tract or lot, and that on the day of sale he notified plaintiff that he had changed his mind and he intended to exercise what he claimed to be his right under the contract to accept any bid which he saw proper whether it equalled or exceeded the minimum fixed price or not, and that thereupon the oral contract sued on was entered into. A demurrer filed to the petition as thus amended was likewise sustained and the court gave judgment for the sum of $280.91, the amount to which plaintiff was entitled under the written contract, and dismissed his petition in so far as it sought a recovery for any other sum, and to reverse that judgment plaintiff appeals.
It is a fundamental principle, with which even the la/w student is familiar, that a consideration sufficient to uphold a contract need not be the payment of money, or the delivery of property, since it is sufficient if the thing agreed to is “a benefit to the party promising, or a loss or detriment to the party to whom the promise is made.” 13 Corpus Juris, and Van Winkle v. King, 145 Ky. 691. By the word “benefit” in this definition is meant “that the promisor has, in return for his promise, acquired some legal right to which he would not otherwise have been entitled,” and by the word “detriment” in the definition is meant, “that the promisee has, in return for the promise, forborne some legal right which he otherwise would have been entitled to exercise.” Corpus Juris, supra, 311-312, and pages 315-316 and numerous cases cited in note 90. As a corrollary to the above definition of a valid consideration for a contract it is held by the courts and stated by text writers that: “A promise to do what the promisor is already bound to do cannot be a consideration, for if a person gets, nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal. Therefore, as a general rule, the performance of, or promise to perform, an existing legal obligation is not a valid consideration.” 13 Corpus Juris
In the light of these well settled principles of the law relating to contracts our task is to determine whether there was a valid consideration for the oral contract which plaintiff attempts to enforce. As we understand his counsel the principal, if not the only, contention made in brief is thát the written contract gave plaintiff the exclusive right for 60 days after August 30, 1919, to sell defendant’s farm, and that in as much as a sale was made by defendant on September 12 thereafter, through his confirmation of the offered bids under the minimum price fixed by him, the exclusive right of plaintiff to'sell the farm until that date was surrendered which, it is contended, furnished a sufficient consideration for the oral agreement. If plaintiff’s counsel is correct in his interpretation of the written contract there can be no doubt of the correctness of his conclusion; so that it becomes, necessary to construe the written contract according to the leading and all prevailing rule, i. e., the intention of the parties as gathered from the entire contract. Siler v. White Star Coal Co., 190 Ky. 7. At the outset it is perfectly patent to our minds that there is an irreconcilable conflict between the terms “60 days” and the terms “before the 15th of Sept.,” found in the written contract, as measuring the time within which the sale contracted for shall be made. Evidently, as is shown by erasing the printed word “privately” therein, the only sale .contemplated by the parties was one “at auction,” and even that character of sale must be made “before the 15th of Sept.” There can be no ■escape from the conclusion that such was the intention of the parties, for the contract says so in plain and unambiguous terms. Moreover, that interpretation was the one put upon it by the parties, since there was never any attempt on the part of plaintiff to make a private sale of the property, nor to make a sale at auction except on the day he fixed, viz.: September 12, 1919. He does not allege his intention or purpose to have offered the land for sale after the 12th and before the 15th of September, or at any other time thereafter up to the expiration of the 60 days. But, if he had so alleged it would not aid his cause, since as we have seen, only one
If the interpretation of the written contract contended for by plaintiff is the true one then it would become possible for him to place defendant in such position as to obtain from the latter a fraudulent and undue advantage, to extricate him from which he would be compelled to submit to almost any terms which plaintiff might see proper to impose. This is seen when it is remembered that plaintiff under the written contract could sell any subdivided tract or lot of plaintiff’s farm which he might select, provided he obtained a bid equal to or above the minimum price fixed thereon. Under. such right the parcel containing the dwelling could be sold first, or near the first one (as was done in this case) and if the other parcels did not bring the minimum price plaintiff would not only be deprived of his dwelling, but would also have his farm divided because of the sale of the lot upon which his dwelling was located. In that situation, if plaintiff’s contention be true, defendant could not accept or confirm the sale of the other lots or make a sale himself thereof until the expiration of the 60 days. With defendant in this dilemma plaintiff was in a condition to obtain a most advantageous alteration of the written contract. Clearly it was not intended by the parties in executing the written contract for defendant to be placed in any such situation. Such construction would render the contract extremely oppressive to defendant and place him largely at the mercy of plain-' tiff, who, according to his construction, could destroy the unity of defendant’s farm with the latter’s right to protect himself perhaps dangerously postponed. Courts, when the language employed is capable of a different construction, will not adopt the oppressive one. Elliott on Contracts, section 1521, and 13 Corpus Juris 540. Moreover, we have seen that the original contract was both prepared and printed by plaintiff. Its words are those of his own choosing and the rule is in such cases, if the contract is ambiguous and equally susceptible to two constructions, that one will be adopted which is the
Having reached this conclusion it necessarily results that there was no consideration for the oral contract and the court properly sustained a demurrer to plaintiff’s petition as amended and the judgment dismissing it is affirmed.