Forbes v. Arizona-Parral Mining Co.

• Decision Date: 02 October 1913
• Docket Number: Civil 1315
• Citation: Forbes v. Arizona-Parral Mining Co., 135 P. 715, 15 Ariz. 30 (Ariz. 1913)
• Parties: ALBERT W. FORBES, Appellant, v. ARIZONA-PARRAL MINING COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

135 P. 715

15 Ariz. 30

ALBERT W. FORBES, Appellant, v. ARIZONA-PARRAL MINING COMPANY, a Corporation, Appellee

Civil No. 1315

Supreme Court of Arizona

October 2, 1913

APPEAL from a judgment of the Superior Court of the County of Pima. W. F. Cooper, Judge. Reversed.

STATEMENT OF FACTS BY THE COURT.

Appellant sues for commission as a broker. The contract of employment is in the form of a letter which is set out in haec verba in the complaint, and is in words and figures following:

"Arizona-Parral Mining Company.

"1012 Baltimore Avenue, Kansas City, Mo.

"Nov 16, 1910.

"Mr A. W. Forbes, P.O. Box No. 868, Tucson, Arizona.

"Dear Sir: I have your letter of November 11th, and in reply beg to say that this company cannot consider giving you a bond or option on the San Xavier property, and cannot entertain the putting of such negotiations through third parties. If responsible parties really desire to take up the matter seriously, they can be put by you in communication with us direct, so that we may satisfy ourselves that they are thoroughly capable of carrying out any engagement they might enter into in connection with same, and unless such parties can give us ample assurance that the matter will be taken up seriously and actively, with a full recognition of the fact that the company would not accept less than $250,000.00 for the property, we do not care to spend time in negotiation on the subject. In the event that anyone should buy the property from us as the direct result of an introduction to the company by yourself, we should of course be glad to recognize your intervention by a suitable commission on any deal that might be made. If the parties you have in mind can fill the conditions above required, we shall be pleased to have you put them in direct communication with us. Otherwise we shall not pursue the matter further.

"Yours very truly,

"B D. ROWE,

"President."

Appellant alleges in his complaint that he fully performed all of the conditions of the contract by presenting the property of appellee to the Empire Zinc Company, and that as a direct result thereof the Empire Zinc Company, on the eleventh day of November, 1912, purchased the appellee's property paying therefor $175,000. He alleges that the reasonable value of the introduction by and services of himself is the sum of $17,500. Appellee's answer denied generally the allegations of the complaint. On the trial when appellant offered the letter set out in the complaint as evidence of his contract, the appellee objected to it on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The objection was sustained, and the appellant, standing on his complaint, refused to amend, whereupon judgment was entered that the appellant recover nothing, and that defendant have its costs. From this judgment and the order overruling motion for a new trial, this appeal is taken.

Mr. Eugene S. Ives, for Appellant.

Mr. S. L. Kingan and Messrs. Ashley & Gilbert, for Appellee.

OPINION

ROSS, J.

The appellee's contention is that appellant's engagement required him to introduce a purchaser of the property for not less than $250,000 to entitle him to any commission, and that, inasmuch as the property was sold for only $175,000, the ruling of the court, rejecting the evidence offered, and the judgment entered should be sustained. The appellant's construction of his engagement is that he had discharged his obligation when he brought the parties together, and that his commissions were due upon the consummation of the sale upon terms satisfactory to appellee. The question is one of construction of the contract as evidenced by the letter of November 16, 1910. Bearing in mind, as is stated in 9 Cyc. 577, that "the first and main rule of construction is that the intent of the parties as expressed in the words they have used must govern," let us search the language of this contract and ascertain therefrom, if we can, whether the parties had a common understanding, and, if so, what that understanding was from the language used.

The first sentence of the letter is: "I have your letter of November 11th, and in reply beg to say that this company cannot consider giving you a bond or option on the San Xavier property, and cannot entertain the putting of such negotiations through third parties." The natural and unavoidable inference is, from this language,...