McFarland v. Gillioz

• Decision Date: 14 April 1931
• Docket Number: 29339
• Citation: 37 S.W.2d 911,327 Mo. 690
• Parties: Kirk McFarland v. M. E. Gillioz, Appellant
• Court: Missouri Supreme Court

37 S.W.2d 911

327 Mo. 690

Kirk McFarland v. M. E. Gillioz, Appellant

No. 29339

Supreme Court of Missouri

April 14, 1931

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Affirmed.

Sam M Wear, James E. Sater, William B. Bostain and R. R. Brewster for appellant.

(1) In construing a contract full force must be given, if possible to all its provisions. If they are in conflict, or the language of the contract is ambiguous, and if all the provisions fairly considered may be harmonized and reconciled by giving the contract one construction and may not be harmonized or reconciled by giving it another, then that construction which is in harmony with all the provisions must be adopted. Matthews v. Modern Woodmen, 236 Mo. 326; Calloway v. Henderson, 130 Mo. 77; Webb v. Insurance Co., 134 Mo.App. 576; Chocolate Co. v. Candy Co., 240 S.W. 473; Light Co. v. Independence, 188 Mo.App. 157; State ex inf. v. Burkhead, 187 Mo. 14; Thomas v. Phonograph Co., 144 Wis. 470; Hager v. Reilly, 241 Pa. St. 297; 88 A. 492. (2) Where parties contend for opposite constructions of a contract, and where the contract may be susceptible of either construction, and where under one construction the contract is fair and equitable and under the other construction it is unfair and inequitable, that construction which renders the contract fair and equitable will be adopted. McCartney v. Trust Co., 274 Mo. 224, 202 S.W. 1131. (3) Where a contract is prepared by one of the parties thereto and where there is ambiguity in the language thereof, the contract should be construed more strictly against the party who prepared it. Grossenbacher v. Dailey, 287 S.W. 781; Sandbrook v. Investment Co., 239 S.W. 543; State v. Trimble, 256 S.W. 171; 13 C. J. 546. (4) The court committed reversible error in giving Instruction 2 offered by plaintiff, wherein the court instructed the jury that under the contract in evidence the plaintiff's compensation was to be figured yearly, and that they would not consider in arriving at their verdict, the question as to whether or not the defendant's business was profitable or unprofitable during the years 1923 and 1924, and that in determining whether or not plaintiff was entitled to recover, they would consider only the question as to whether or not a profit was made in defendant's business during the year 1925.

James A. Finch, Jacobs & Henderson and Thomas E. Deacy for respondent.

(1) Respondent, under the terms and provisions of the contract, was entitled to a one-fourth share of the profits for the year 1925, less $ 6,000, nor was Instruction 1 given for respondent erroneous in that it instructed the jury that the word "profits" is the result obtained by subtracting legitimate expenditures for the year from total income for the year, and the instruction is correct in excluding from the consideration of the jury, in determining profits for the year 1925, losses sustained during the other or the first two years of the contract. Isaac v. Gerretson Co., 191 N.W. 55; Generry v. Almstead, 90 N.Y. 363; Horton v. Brick Co., 149 P. 813; Moorehouse v. Contracting Co., 95 N. Y. (Equity) 280, 122 A. 374; Hager v. Reilly, 241 Pa. St. 297, 88 A. 492; Scase v. Mfg. Co., 55 Minn. 349; Gairman v. Hampel, 205 N.W. 393; Cooper v. Woodward, 204 P. 336; Shields v. Rancho Buena Ventura, 203 P. 114; Sparr Mountain Mining Co. v. Schweirn, 296 F. 678. (2) The contract in question did not create a joint adventure or partnership between appellant and respondent under which respondent would be liable for losses in the business, but merely created the relation of master and servant. Hill v. Curtis, 139 N.Y.S. 428; Goodin v. Pet, 134 P. 459; Morrow v. Murphy, 120 Mich. 204; Galliers v. Peppers, 76 Iowa 521; Teller v. Hartman, 16 Colo. 447; J. A. Schaefer Const. Co. v. Jones, 3 S.W.2d 286; Darling v. Buddy, 1 S.W.2d 163; 33 C. J. 847; Bank v. Francis, 296 Mo. 169.

OPINION

White, P. J.

The appeal from a verdict and judgment for $ 16,632 rendered in favor of the plaintiff October 26, 1927, in the Circuit Court of Jackson County, at Kansas City, for services rendered by the plaintiff to defendant in accordance with a contract of employment, as follows:

"Agreement

"This Agreement, signed and sworn to, on this 17th day of October, 1922, by and between M. E. Gillioz of Monett, Missouri, as party of the first part, and Kirk McFarland, of St. Louis, Missouri, as party of the second part

1. "Witnesseth, that the said party of the second part agrees to give his services to the said party of the first part in work pertaining to road and bridge construction, construction of buildings, drainage work and all allied and similar kinds of work in which the party of the first part may be or become engaged, the services of the party of the second part to be of a general supervisory character in assisting the party of the first part to carry out the above-mentioned construction or other work, and said party of the first part hereby

2. "Agrees, in consideration of said services to be given by said party of the second part, to pay to the said party of the second part one-fourth of all profits accruing from any work of the above-mentioned character in which the said party of the first part may be financially interested, said share of profits to be calculated and paid over on January 1, 1924, on January 1, 1925, and on January 1, 1926, provided, further, that the said party of the first part guarantees that he will pay over to the said party of the second part the sum of five hundred dollars on the first day of each month for a period of three years, the first of such payments to be made on January 1, 1923, it being understood that such monthly payments are to be counted against the said one-fourth share in the accruing profits to be divided each year as aforesaid, it being understood that this agreement shall be in force beginning November 15, 1922, and shall terminate on January 1, 1926, the aforesaid profits to be calculated and divided as of these two last mentioned dates, and

3. "Provided Also that, for the purpose of this agreement, it is understood that profits are to be divided on the aforesaid basis, on all of the aforesaid work in which said party of the first part is financially interested, from and after November 15, 1922, when the said party of the second part shall begin work for the said party of the first part, up to and until January 1, 1926.

4. "For the Purpose of This Agreement, it is understood that profits shall be considered as the result obtained by subtracting the legitimate expenditures on the works above-mentioned, from the total income or revenues on such works, and that legitimate expenditures includes the cost of all labor and materials actually and entirely consumed in such works; a proper proportion of the cost of equipment, such as machinery and tools used on the works; a proper proportion of such overhead charges as office and bookkeeping costs; the traveling and incidental expenses incurred by each party in performance of his duties in connection with the works above-mentioned, which shall include the value and operation expenses of one good moderately priced automobile for each party to this agreement.

5. "On works under way or contracted for on November 15, 1922, it is understood that the said party of the second part shall share in only such parts of the profits as are properly chargeable to such works as is accomplished after November 15, 1922, it being understood that the portion in which the said party of the second part shall share is to be calculated by multiplying the total profit on such works by the percentage of the works to be completed after November 15, 1922, said percentage to be calculated by dividing the value in money of the works yet to be completed, by the value in money of the total works. Similarly, the portion of the profits in which said party of the second part shall share on works under way at the time of expiration of this contract, shall be a percentage of the total profits on such works, such percentage to be calculated by dividing the value in money of the part of such works as is completed, by the value in money of the total amount of such works.

6. "It Is Also Understood that the 'Proper proportion of the cost of equipment' as aforesaid shall be taken to mean, on any particular job, the difference between a fair sale value of such equipment just prior to being placed on the job, and a fair sale value when its work on the job is completed, provided, that the sum of all such equipment assessments for any tool or piece of machinery shall not exceed the 'fair sale value' of such equipment when it is first used on works which fall within the scope of this agreement.

7. "It Is Also Understood that interest charges on money required to carry on the aforesaid works are not to be accounted as one of the legitimate expenses above-mentioned, on account of the fact that the carrying of this cost has been assumed as a charge to be met alone by the party of the first part, in the considerations preceding the agreement to provide profits on the basis of three-fourths to the party of the first part, and one-fourth to the party of the second part.

8. "It Is Also Hereby Agreed that, in case of a dispute as to a proper interpretation of any of the terms and conditions of this agreement, or as to the fairness and equity of any proposition submitted by either party which can be considered as being supplementary to this contract, but not changing any of its terms or conditions in any degree, each party shall select a competent and financially disinterested person as a representative, which representative shall select a mutually agreeable third person, and that both parties to this agreement will stand to...