Gaty v. Clark

• Decision Date: 24 December 1887
• Parties: JOHN U. GATY, Respondent, v. W. P. CLARK, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 332

JOHN U. GATY, Respondent, v. W. P. CLARK, Appellant.

Court of Appeals of Missouri, Kansas City.

December 24, 1887

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

Statement of case by the court.

This is a suit brought by plaintiff as a real-estate broker and agent, upon a contract made by defendant with him for the sale of certain land. The petition alleges the sale of the land in accordance with the contract and asks judgment for the amount of the contract commission. The answer admits the execution of the contract filed with the petition, and alleges: " And that, at the date of the execution of the contract aforesaid, it was agreed between plaintiff and defendant that if the land should be sold to a party sent during that week by Mr. Repp to look at the same, or if it should be sold to one A. Ozias, then in either event no commission was to be paid, and said agreement was a part of said written agreement, and was intended to be so inserted in said written agreement; but that plaintiff, in attempting to do so, by mistake, without the knowledge of the defendant made the insertion in said agreement to read as follows ‘ If sold by a party sent by Mr. Repp, of this week, then no commission to be paid; also, A. Ozia.’ Defendant asks that the mistake be corrected and said contract reformed and made to read as herein set out" that said lands were afterwards sold to said A. Ozias, and that plaintiff is not entitled to any commission for the sale of the same; and that the defendant has refused and still refuses to pay any commission or any sum whatever to the said plaintiff. Defendant, further answering, denies each and every allegation of plaintiff's not herein admitted, and having fully answered, asks to be discharged, with costs.

The plaintiff's reply to the answer denies " every allegation of new matter therein, inconsistent with the plaintiff's petition." Upon the trial it was admitted, that is, the plaintiff and defendant both testified, that in the exception in the contract " by" should have been " to" , and the exception should have read, " If sold to a party sent by Mr. Repp," etc. It was also, in the same manner admitted that " A. Ozia" in the exception should have read " A. Ozias." It was testified by both parties that the land was sold to A. Ozias. The sale was made a month after the execution of the contract. The defendant testified that it was agreed and understood by plaintiff and defendant, and intended by the exception in the contract, that should a sale at any time, be made to A. Ozias, the plaintiff should not receive a commission. The plaintiff testified, and the tendency of the other testimony was, that the understanding and agreement of the parties was, that should a sale be made of the land in one week to A. Ozias, the plaintiff should not receive a commission; in other words, that the exception as to A. Ozias, as well as to the exception as to the other party who might be sent by Mr. Repp, was limited to one week. The case was tried by the court sitting as a jury. The court, for the plaintiff, declared the law to be as follows:

" 1. The court declares the law to be that: Before the court can reform the contract as prayed in the answer of defendant, the defendant must prove clearly and satisfactorily that the intention of the parties was as claimed by defendant."

" 2. When there is a doubt in the mind of the court as to the meaning of the parties as expressed by their contract in writing, and their meaning cannot be gathered from the written instrument by giving the ordinary and proper construction of the words used in the instrument of writing of the parties, it is the duty of the court to take into consideration the contemporaneous acts and conversation of the parties and their situation and motives in executing the contract, and from them determine the contract intended to be entered into by the parties at the time."

" 3. If the court believes, from the evidence, that plaintiff and defendant entered into a contract, whereby defendant agreed to pay plaintiff a commission for selling his farm, and that plaintiff did effect a sale thereof, then the finding must be for plaintiff in whatever amount the court believes him entitled to under such contract, not to exceed the amount claimed in the petition."

The court refused to give a declaration of law in the nature of a demurrer to the evidence asked by the defendant. And the court also refused to give the following declarations of law asked by defendant:

" 2. The court, sitting as a jury, declares that under the pleadings and issues in the case the evidence offered by plaintiff for the purpose of showing that at the date of the contract read in evidence it was agreed between the parties to said contract that commission should be paid for the sale of the land in question, even though the same be sold to A. Ozias, is incompetent and will be excluded by the court."

" 3. The court declares the law to be: That if the court, sitting as a jury, believes, from the evidence, that in the phrase set out in the contract read in evidence: If sold by a party sent by Mr. Repp, of this week, then no commission to be paid; also, A. Ozia," the word " by" should be to, and the word " Ozia" Ozias, then, by the terms of the said contract it was agreed that if the land in question was sold to the said A. Ozias, then no commission was to be paid, and if it appears from the evidence that the land was sold to said Ozias, then the finding will be for defendant."

The court found for the plaintiff, and the defendant has appealed.

O. L. HOUTS, for the appellant.

I. The contract sued on provided: " If sold by a party sent by Mr. Repp of this week, then no commission to be paid; also A. Ozia." On trial it was conceded that the preposition, by, should have been to, and that the name, Ozia, should have been Ozias, and that the land was sold to Ozias. The meaning of the contract, then, was plain from its terms, that no commission was to be paid, and defendant's first instruction should have been given. It is a rule of law, as well as of language, that a qualifying phrase carries the meaning to the nearest subject that will receive it. " Sent by Mr. Repp of this week" applies to " party."

II. Defendant's answer set out the reservation in the contract; that, under the reservation, no commission was to be paid if the land was sold to Ozias, and that it was sold to him. Plaintiff in reply denied all these allegations, and then on trial introduced evidence tending to show the existence of the reservation, but that it was only to last for one week, and that the land was sold to Ozias after that time. This was incompetent under the pleadings, and defendant's second instruction, excluding that evidence, should have been given. Price v. Railroad, 72 Mo. 414; Bank v. Armstrong, 62 Mo. 59; Currier v. Lowe, 32 Mo. 203; Ely v. Railroad, 77 Mo. 34; Weil v. Poston, 77 Mo. 284; Bruce v. Sims, 34 Mo. 246; Seibert v. Allen, 61 Mo. 482; Wade v. Hardy, 75 Mo. 394. This instruction should have been given though the evidence was not objected to. Price v. Railroad, supra.

III. The contract sued on was in writing, containing certain conditions that might bar a recovery, although a sale was made by plaintiff. The answer sets up these conditions in bar. The instruction given for plaintiff, as to the contract, treats it as unconditional, and it should have been refused.

IV. It was the duty of the court to construe this contract as declared in the instruction asked for defendant, the evidence of plaintiff conceding the clerical errors as therein set out.

JOHN J. COCKRELL, for the respondent.

I. The defendant, it is admitted, owned the land and executed the contract sued on, but he denies that plaintiff sold the land under the contract, so as to be entitled to a commission. The answer sets up that the words of the contract, viz., " If sold by a party sent by Mr. Repp of this week, there is no commission to be paid; also A. Ozia," were written in the contract by mistake; and that the parties thereby intended to write, " that no commission should be paid if the land was sold to a party sent by Mr. Repp this week, or if sold to A. Ozias," and prayed a reformation. The reply was a general denial. The issue then made by the reply and answer was, was the language quoted so written by mistake, and did the parties intend, instead thereof, to use the language contended for by appellant in his answer? These are all the issues.

II. Now let us see if the instructions apply to these...