Turnley v. Micheal

• Decision Date: 04 March 1891
• Parties: TURNLEY <I>et al.</I> v. MICHEAL <I>et al.</I>
• Court: Texas Court of Appeals

15 S.W. 912

TURNLEY et al. v. MICHEAL et al.

Court of Appeals of Texas.

March 4, 1891.

Appeal from Galveston county court.

Waul & Walker, for appellants. J. B. & C. J. Stubbs, for appellees.

WHITE, P. J.

Appellants brought this suit to recover $500, which they claimed as real-estate brokers was due them on the sale by them of certain real property at the instance of and belonging to appellees. There is but a single question in the case, and that is as to the meaning and proper construction of certain words used in the contract between the parties. When the appellants were finally authorized to sell the property for $7,500, the language used by Micheal, appellee, acting for himself and the other owners, was, "I will take $7,500 net to me." The appellants sold the property for $8,000, and the purchaser paid the money to appellees. Appellants demanded $500, the amount over and above $7,500, and, being refused, brought this suit. The case was tried below by the judge without a jury, and he gave judgment for appellants for $208, it being 2½ per cent. commissions on $8,000, the amount for which the property was sold, together with the interest, and he filed conclusions of fact and law. What is the proper legal meaning of the word "net," as used in the contract? Mr. Webster, among others, defines it to be "clear of all deductions and charges." In Evans v. Waln, 71 Pa. St. 69, it was held that, "as applied to the proceeds of the sale of stock, the phrase `net balance' means, in commercial usage, the balance of the proceeds, after deducting the expenses incident to the sale." In Scott v. Hartley, (Ind.) 25 N. E. Rep. 826, the word "net" is defined: "That which remains after the deduction of all charges and outlay, as `net profits,'" etc.; "also clear of all charges and deductions, as `net profit,' `net income,' `net weight,'" etc.; and it was held in that case that evidence of custom tending to contradict the meaning of the words "net price" was inadmissible, because the words were plain and unambiguous. We are of opinion that the word "net," as used in the contract, meant that the property must bring to the owner at least $7,500 free of all expenses and deductions. We do not think the language is susceptible of the construction that the appellee Micheal intended to give appellants all the land might sell for over $7,500 as their fees for their services. This was the view taken by the court below, and we are satisfied it is correct. There is some...