Lavecchia v. Reed

• Decision Date: 28 October 1935
• Docket Number: 31825
• Citation: 174 Miss. 9,163 So. 681
• Court: Mississippi Supreme Court
• Parties: LAVECCHIA v. REED

163 So. 681

174 Miss. 9

LAVECCHIA v. REED

No. 31825

Supreme Court of Mississippi

October 28, 1935

Division B

1 BROKER.

Broker's commission for procuring purchaser or lessee who is accepted by owner and with whom valid contract is made is then earned although purchaser or lessee later defaults.

2 BROKERS.

Where brokerage contract for sale of hotel equipment and lease of hotel provided for commission of five per cent in cash on amount of sale of equipment and additional two per cent on total rental reserved in lease, broker held entitled to recover two per cent commission on total amount of rent provided for in fifteen-year lease of hotel which he procured, even though lessee breached contract and abandoned hotel after a few months.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county HON. E. L. BRIEN, Judge.

Action by P. H. Reed against Joseph V. Lavecchia. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Brunini & Hirsch, of Vicksburg, for appellant.

Contract of agency is construed according to rules governing contracts in general.

2 C. J., p. 753, sec. 418.

The contract does not call for the payment of two per cent in cash of the total amount reserved in the lease.

The words of a contract will be given a reasonable construction, and the court will likewise endeavor to give a construction most equitable to the parties, and which will not give one of them an unfair or unreasonable advantage over the other. So that interpretation which evolves the more reasonable and probable contract should be adopted and a construction leading to an absurd result should be avoided.

13 C. J. 540, sec. 511.

Contracts are construed most strongly against party using words.

13 C. J. 544, sec. 516; Home Mutual Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739.

And especially is this true where a printed form is used.

Farmers' National Bank v. Delaware Ins. Co. , 83 Ohio St. 309, 94 N.E. 834; Mount Vernon Refrigerating Co. v. Wolf Co., 188 F. 164, 110 C. C. A. 200; Hardy v. Ward, 150 N.C. 385, 64 S.E. 171.

In arriving at the intention of the parties where the language of a contract is susceptible of more than one construction, it should be construed in the light of the circumstances surrounding them at the time it is made.

13 C. J. 542, sec. 514; Melvin v. Aldridge, 81 Md. 650, 32 A. 389.

Wm. I. McKay and Dent, Dent & Robinson, all of Vicksburg, for appellee.

There is no ambiguity in the contract as to when the agreed commissions became due to appellee. When appellee accepted appellee's customer and contracted with him, appellee's commissions became due.

There is nothing in the contract between the appellant and appellee rendering appellee's right to his commissions dependent upon the vendee-lessee's payment of the reserved monthly rentals.

The appellant put in neither plea nor proof that payment of commissions was dependent upon payment of the monthly rentals.

OPINION

Anderson, J.

Appellee brought this action in the circuit court of Warren county against appellant to recover the sum of two thousand forty dollars, alleged to be brokerage commissions due him for his services in procuring a lessee for the National Park Hotel in Vicksburg. At the conclusion of the evidence, on appellee's motion the court directed a verdict and judgment in his favor for the amount sued for. From that judgment appellant prosecutes this appeal.

The National Park Hotel in Vicksburg belonged to the estate of Vincent Lavecchia. Appellant had authority from the owners to lease the hotel and sell the furnishings therein. He listed the property with appellee, a hotel broker in Chicago, Illinois. The brokerage contract contained this provision: "I hereby list with you for sale the furniture, equipment, or corporate stock, and the leasing of the building of the following named hotel, upon terms set forth herein. You are to make no charge unless instrumental in securing a purchaser or lessee, in which event I hereby agree to pay you a commission of 5% in cash, on total list price or total amount of any sale actually made, for the furniture, equipment, or corporate stock, and in addition 2% on the total rental reserved in lease, Minimum commission $ 250.00."

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