186 P. 681 | Mont. | 1919
delivered the opinion of the court.
This is an action to recover a commission for the sale of lands. The following contract (Exhibit “A”), partly written and partly printed, was prepared by the manager of the land department of the plaintiff and by the defendant J. C. Miller, acting as trustee for his codefendants, signed and delivered to plaintiff:
[1] “No.- May 9, 1914.
“I hereby appoint Wright Land & Investment Company of Lewistown, Montana,-, agent to sell the following real estate in Fergus county, Montana, to-wit: N. %, Sect. 14, South % and NW. *4, Sect. 11, Twp. 16, Eange 15, including crop now on place except % of crop on N. 160.
“I will accept for said property the sum of $45.00 per A. net, on the following terms, to-wit: $1,000 at the time of enter*6 ing into the contract of sale, balance terms to be arranged, # ‘ # #
“I agree to furnish purchaser with warranty deed and abstract of title showing perfect title. At time of sale I agree to pay said agent as commission for selling said property $- any amount he can get over the above price.
“I reserve the right myself to sell or to list with other agents. Unless sale is made by myself or by other agents, this appointment will hold good until notified.
“Signed — J. C. Miller, Trustee.”
Acting thereunder, plaintiff produced as a purchaser one Prank Bralley, between whom and defendant Miller, trustee, a paper entitled “Contract for the Sale of Real Estate,” hereafter called Exhibit “B,” was entered into, in which defendants agreed to sell, and Bralley agreed to buy, the lands of defendants. Under its terms there was to be deposited in escrow , in- the Bank of Fergus county, a good and sufficient deed to the premises, with instructions for its delivery to the purchaser upon compliance with the terms prescribed therein. The payments were divided into nine; the first, of one dollar, to be paid on delivery to the bank of Exhibit “B”; the second, of $2,000, on January 1, 1915; and the other seven, varying in amounts, on the first day of January of each succeeding year thereafter, until January 1, 1922. It was provided that Bralley should take possession of the premises, cultivate and raise crops thereon, and after deducting the cost of production and marketing thereof, the overplus should be applied to the payment of the principal and interest to become due upon the next succeeding installment; that all state and county taxes, after 1914, should be paid by Bralley; and, by direction of defendants’ Exhibit 1, the memorandum accompanying the escrow, in the event of a full compliance on the part of Bralley with Exhibit “B,” the deed to the land should be delivered by the bank to him.
The complaint alleges the performance of all of the covenants, terms and conditions to be performed by the plaintiff and that
The court erred, it is insisted by appellants, in finding that the commission of $2,400 was due plaintiff immediately upon the execution and deposit in escrow of Exhibit “B.” Respondent’s position is that the “time of sale” was signaled by its signing and delivery in escrow. Appellants insist that a sale was not, and could not be, consummated until the requirements of Exhibit “B” were met by the proposed purchaser. Does that instrument embody terms and conditions the legal equivalent of a sale absolute, or merely a contract executory in its nature? A careful analysis of our Code provisions defining sales and providing rules for the interpretation of contracts such as these will render a correct solution of the question comparatively easy; for if, by the use of the words in Exhibit “A,” “at the time of sale I agree to pay said agent as commission for selling said property,” was meant that plaintiff’s commission was earned when a contract of purchase was executed, then the judgment must stand; if it was not earned until the purchase price had been fully paid, the action was prematurely brought, and judgment must be ordered in appellants’ favor.
What were the ultimate aims and objects of the parties? Obviously, upon the part of plaintiff, it was the earning of the three dollar per acre commission; upon the part of defendants, it was the sale of their lands for the sum of forty-five dollars per acre net to them. Upon the accomplishments of these purposes the minds of both parties met. The record discloses the following to be undisputed: The words “May 9, 1914,-” the word “Fergus” before “County,” and the description of the land, and the words “including crop now on the place except
Exhibit “B” also contained the following: “In the event of a failure to comply with the terms hereof by the said party of the second part [Bralley], or either of them [the terms], the first party [defendants] shall be released from all obligations to convey the said premises or any part thereof; and the said party of the second part [Bralley] shall forfeit all payments made thereon which shall be considered as rental for the said premises, as it would be difficult to fix the actual damage to the party of the first part [defendants] by the said party of the second part [Bralley].”
There is oral testimony in the record, conflicting in character, concerning the time the commission would be due; but as the intention of the parties is evident enough from the writings
A careful scrutiny of Exhibit “A” reveals that by the first paragraph, plaintiff is made the agent of the trustee to sell the property described; by the second, the minimum figure {forty-five dollars per acre) the trustee is to receive therefor, and the terms the agent (plaintiff) is to make to the buyer “at time of entering into contract of sale” are fixed (the quoted words in print); “balance terms to be arranged” in pen and ink. By the third paragraph, the trustee agrees to furnish abstract showing perfect title, and “at time of sale” agrees to pay the agent for selling said property, “any amount he can get over the above price.” By the last, the trustee reserves the right to himself to sell, or to list with other agents; and “unless sale is made by myself, or other agents, this appointment will hold good until notified.” With what degree of reason can it be contended that the whole tenor of the contract contemplated anything less than a completed sale? True, the printed words are, “at time of entering into contract of sale.” But they were there already — not inserted at the dictation of the trustee, so far as the record shows. They must, therefore, be subordinated to the written words. Section 5039 of the Bevised Code reads: “Particular clauses of a contract are subordinate to its general intent. ’ ’ The following section also has particular reference to, and is aimed directly at, a contract prepared as this was, as will appear by its language: “When a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view of their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts and the parts which are purely original control those which are copied from a form. And if the two are absolutely repugnant, the latter must be so far disregarded.” Section 5041 reads: “Bepugnancy in a contract must be reconciled, if possible, by such an interpretation
Section 5084, Revised Codes, reads as follows: “An
What, then, was the title under which Bralley held ? Clearly,
The conclusion we have reached is in full accord with the adjudicated cases upon the subject, as will presently be seen. Many of the commissions due to agents and brokers turn more or less upon implied obligations growing out of the peculiar circumstances in the decided cases. Here the contract expressly states the terms and conditions of the obligation and the minimum price the seller is to receive, leaving no room for implication. The plaintiff, in words of its own choosing, was empowered to make a sale at a fixed price per acre of forty-five dollars to the defendants, its compensation to be “any amount he can get over the above price. ’ ’ The complaint alleges a sale. Under the listing agreement, the plaintiff undertook to produce a purchaser ready, willing and able to buy, and this necessarily implied a consummated sale — such a contract as the courts will enforce on demand. This it failed to do. Recovery can only be had upon proof of a sale in fact.
In Clark & Skyles on the Law of Agency, volume 2, section 771, the general rule is stated thus: “It is not sufficient that he should enter into an agreement to purchase, but he must actually purchase, by complying with the terms agreed upon, unless his failure to do so is occasioned by the fault of the ven
Authorities abound in an unbroken line, holding that where
“In Keener v. Harrod, 2 Md. 63, 70, 56 Am. Dec. 706, the court said: ‘The legal import of an agreement to procure a purchaser, binds the party to name a person who ultimately buys the property,’ as was held in Murry v. Currie, 32 Eng. Com. L. 641, cited by the court in support of its language. In
The effect of the ruling of the trial court, interpreting the meaning of the contracts to be that the plaintiff’s commission was earned immediately upon the execution of Exhibit “B” and its deposit in escrow with the deed, was to import into the agreement a meaning not to be inferred from the language used. Upon no possible theory can the conclusion be sustained.
The judgment and order overruling defendants’ motion for a new trial are reversed, with directions to enter judgment for defendants.
Remanded with directions.
Motion for rehearing denied January 23, 1920,