Petovello v. Murray

• Decision Date: 22 February 1985
• Docket Number: Docket No. 74503
• Citation: 139 Mich.App. 639,362 N.W.2d 857
• Court: Court of Appeal of Michigan — District of US
• Parties: Joseph PETOVELLO d/b/a Joseph Petovello & Associates, Plaintiff-Appellee, Cross-Appellant, v. Ruth MURRAY, Defendant-Appellant, Cross-Appellee. 139 Mich.App. 639, 362 N.W.2d 857

Page 857

362 N.W.2d 857

Joseph PETOVELLO d/b/a Joseph Petovello & Associates Plaintiff-Appellee, Cross-Appellant, v. Ruth MURRAY, Defendant-Appellant, Cross-Appellee.

Docket No. 74503.

139 Mich.App. 639, 362 N.W.2d 857

Court of Appeals of Michigan.

Submitted June 21, 1984.

Decided Dec. 17, 1984.

Released for Publication Feb. 22, 1985.

[139 MICHAPP 640] Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by Richard J. Brake, Lansing, for plaintiff-appellee, cross-appellant.

Barr, Anhut & Sacks, P.C., by Monika H. Sacks, Ypsilanti, for defendant-appellant, cross-appellee.

Before MacKENZIE, P.J., and BEASLEY and KIRWAN ^*, JJ.

KIRWAN, Judge.

Defendant appeals as of right from the granting of plaintiff's motion for summary judgment, GCR 1963, 117.2(3), and the denial of defendant's motion for summary judgment. Plaintiff has filed a cross-appeal claiming that the court failed to grant the relief to which plaintiff was entitled.

Plaintiff and defendant entered into a commission contract in which plaintiff agreed to provide a lessee for defendant's property and defendant agreed to pay $150 per month commission to the plaintiff for the original term of the lease. Plaintiff found a lessee for the property and was paid $150 per month for a period of five years. At that time, the lessee exercised its option under the lease to purchase the property. Defendant thereupon ceased making further commission payments, claiming there existed no obligation to pay after the lease had terminated. Plaintiff then commenced this litigation, alleging that defendant was [139 MICHAPP 641] legally obligated to pay $150 per month for 21 years, which he claimed was the original term of the lease.

The trial court, in granting plaintiff's motion for summary judgment and denying defendant's motion, ruled that the intent of the parties was sufficiently clear from the written instrument evidencing the agreement and that plaintiff was entitled to collect the $150 monthly commission for 21 years. The trial court further ruled that, in the absence of an acceleration provision in the commission contract, plaintiff was not entitled to an acceleration of the payments. Two issues are presented to this Court for resolution.

I

Does there exist ambiguity within the framework of the written instrument that would require testimony to establish the intent of the parties?

The commission agreement in question provides as follows:

November 7, 1973

AGREEMENT

Re: McDonald's 21 year

Ground Lease

Ecorse Rd. & Center St.

Ypsilanti, Michigan

We, the undersigned, agree to pay Joseph Petovello and Associates a commission of One Hundred Fifty and 00/100 ($150.00) per month for the original term of the above subject Ground Lease. Said monthly commission becomes due and payable when rent is first paid to lessor by Golden Arch [139 MICHAPP 642] Realty Corporation under the terms and conditions of said lease.

Signed:____

Herbert F. Murray

____

Ruth Murray

It is a fundamental principle of law that, if the language of a written contract is subject to two or more reasonable interpretations or is inconsistent on its face, the contract is ambiguous, and a factual development is necessary to determine the intent of the parties. Goodwin, Inc. v. Orson E. Coe Pontiac, Inc., 392 Mich. 195, 220 N.W.2d 664 (1974). It is also fundamental law that the language of a contract is to be construed against the drafter of the contract, United Coin Meter Co. v. Gibson, 109 Mich.App. 652, 657, 311 N.W.2d 442 (1981), which in this case was the plaintiff. Guided by these principles of law, it is this Court's view that, in construing the language of the documents in question, ambiguity exists for the following reasons.

First, while there is no question that plaintiff is correct in his argument that a real estate broker earns his commission when he produces a ready, able and willing buyer or lessee, Weitting v. McFeeters, 104 Mich.App. 188, 304 N.W.2d 525 (1981); Brittson & Smith v. Kroll, 217 Mich. 180, 185 N.W. 689 (1921), this rule of law does not resolve the underlying issue of this appeal which relates to the length of time the plaintiff is entitled to collect his commission. While the plaintiff argues that the contract entitled him to collect a monthly commission for 21 years, defendant claims that the obligation to pay the commission ended in five years when the lease terminated upon the purchase of the property.

[139 MICHAPP 643] The commission agreement provides that the commission was owing for the original term of the lease. It is, therefore, necessary to examine the lease to determine if the meaning of the words "original term" is clearly revealed. For if from a review of the lease the intent of the parties cannot be determined, an ambiguity exists and the parties must be left to their proofs to establish their intent.

In reviewing the lease it is first noted that the paragraph entitled "TERM" is crossed out. Under the paragraph entitled "CONSTRUCTION IMPROVEMENTS" is the following language:

"Lessee at its own * * * * * to have and to hold the same for and during the term commencing the date upon which Lessee has obtained all necessary permits, licenses and approvals for the construction of its improvements and Lessor has satisfactorily provided evidence of title to the demised premises as herein provided, and expiring twenty-one (21) years thereafter. A Supplement to this Lease is hereto attached and made a part hereof containing blanks for the commencement and expiration dates of said term. The parties hereto agree that when said dates become certain, as provided herein, they will complete and execute said Supplement to reflect said dates." (Emphasis supplied.)

It appears from this language that the parties at the time the lease was signed had not agreed on a commencement or expiration date. Further, there is no appendage to the lease entitled "Supplement", nor is there any addendum that provides a date for commencement and termination of the lease. While there is...