31 S.E. 629 | N.C. | 1898
The plaintiff made an assignment to the defendant Purvis in trust to secure his creditors. On default the trustee advertised a sale of the property on 4 April, 1891. After chaffering, the plaintiff and the trustee agreed to postpone the sale until December, 1891, and among other things, they agreed in writing that the plaintiff should make certain payments "and (pay) the costs and charges of advertising, etc., of the mortgage." The trustee afterwards advertised again, and the plaintiff obtained an order restraining the sale on the ground that he had paid the debt, including "all lawful charges thereon." The trust deed provides that the trustee shall receive as a compensation 5 per cent commissions "on the sale of the whole of said land sold, etc." When the cause was heard, his Honor rendered judgment that the trustee "is entitled to commissions provided for in the deed of trust." No sale was made. The plaintiff appealed, and the trustee's right to commissions is the only matter for us to determine.
The same question was presented in Pass v. Brooks,
In Hayes v. Wilson,
It would probably be safe to say that in these, and other like cases where the sense of the abbreviation may be gathered from the preceding words, there is sufficient certainty; but where the abbreviation cannot be understood and affects a vital part of the contract or instrument, the uncertainty will be fatal.
The word "etc." (et cetera) in the case before us does not necessarily mean commissions. It may mean expenses and moneys necessarily expended in the legitimate discharge of fiduciary duties. Commissions mean compensation for selling; charges and expenses are incidental and for money paid out in the discharge of the duties of the office.
Without undertaking to harmonize the nice distinctions above (371) referred to, we think it better to adhere to the plain rule laid down in the first three cases cited above, and in doing so we find the judgment erroneous in allowing commissions, upon the agreed state of facts.
Error.
Cited: Turner v. Boger,