Wright Land & Investment Co. v. Even

• Decision Date: 17 December 1919
• Docket Number: 4060.
• Citation: 186 P. 681,57 Mont. 1
• Parties: WRIGHT LAND & INVESTMENT CO. v. EVEN et al.
• Court: Montana Supreme Court

186 P. 681

57 Mont. 1

WRIGHT LAND & INVESTMENT CO. v. EVEN et al.

No. 4060.

Supreme Court of Montana

December 17, 1919

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by the Wright Land & Investment Company against Peter Even and others. From a judgment for plaintiff, and from order overruling motion for new trial, defendants appeal. Reversed with directions.

Oscar O. Mueller and Blackford & Huntoon, all of Lewistown, for appellants.

O. W Belden and Frank A. Wright, both of Lewistown, for respondent.

COOPER J.

This is an action to recover a commission for the sale of lands. The following contract (Exhibit A), partly written and partly printed, was prepared by the manager of the land department of the plaintiff and by the defendant J. C. Miller, acting as trustee for his codefendants, signed and delivered to plaintiff:

"No ___. May 9, 1914.

I hereby appoint Wright Land & Investment Company of Lewistown, Montana, agent to sell the following real estate in Fergus county, Montana, to wit: N. 1/2, Sect. 14, south 1/2 and N.W. 1/4, Sect. 11, Twp. 16, range 15, including crop now on place except 1/2 of crop on N. 160.

I will accept for said property the sum of $45.00 per A. net, on the following terms to wit: $1,000 at the time of entering into the contract of sale, balance terms to be arranged. ***

I agree to furnish purchaser with warranty deed and abstract of title showing perfect title. At time of sale I agree to pay said agent as commission for selling said property $_____ any amount he can get over the above price.

I reserve the right myself to sell or to list with other agents. Unless sale is made by myself or by other agents, this appointment will hold good until notified.

[Signed] J. C. Miller, Trustee."

Acting thereunder, plaintiff produced as a purchaser one Frank Bralley, between whom and defendant Miller, trustee, a paper entitled "Contract for the Sale of Real Estate," hereafter called Exhibit B, was entered into, in which defendants agreed to sell, and Bralley agreed to buy, the lands of defendants. Under its terms there was to be deposited in escrow in the Bank of Fergus County a good and sufficient deed to the premises, with instructions for its delivery to the purchaser upon compliance with the terms prescribed therein. The payments were divided into nine; the first, of $1, to be paid on delivery to the bank of Exhibit B; the second, of $2,000, on January 1, 1915; and the other seven, varying in amounts, on the 1st day of January of each succeeding year thereafter until January 1, 1922. It was provided that Bralley should take possession of the premises, cultivate and raise crops thereon, and, after deducting the cost of production and marketing thereof, the overplus should be applied to the payment of the principal and interest to become due upon the next succeeding installment; that all state and county taxes after 1914 should be paid by Bralley; and, by direction of Defendants' Exhibit 1, the memorandum accompanying the escrow, in the event of a full compliance on the part of Bralley with Exhibit B, the deed to the land should be delivered by the bank to him.

The complaint alleges the performance of all of the covenants, terms, and conditions to be performed by the plaintiff, and that the commission of $2,400 for the making of the sale is due. The answer denies the making of a sale of the premises and that a commission is now due plaintiff or will be due until the payment of the full purchase price therefor. A trial was had before the court without a jury, and judgment rendered in favor of the plaintiff for the sum of $2,400. Defendants' motion for a new trial was overruled. They appeal from the judgment and from the order overruling the motion.

The court erred, it is insisted by appellants, in finding that the commission of $2,400 was due plaintiff immediately upon the execution and deposit in escrow of Exhibit B. Respondent's position is that the "time of sale" was signaled by its signing and delivery in escrow. Appellants insist that a sale was not, and could not be, consummated until the requirements of Exhibit B were met by the proposed purchaser. Does that instrument embody terms and conditions the legal equivalent of a sale absolute, or merely a contract executory in its nature? A careful analysis of our Code provisions defining sales and providing rules for the interpretation of contracts such as these will render a correct solution of the question comparatively easy; for if, by the use of the words in Exhibit A "at the time of sale I agree to pay said agent as commission for selling said property," was meant that plaintiff's commission was earned when a contract of purchase was executed, then the judgment must stand; if it was not earned until the purchase price had been fully paid, the action was prematurely brought, and judgment must be ordered in appellants' favor.

What were the ultimate aims and objects of the parties? Obviously upon the part of plaintiff it was the earning of the $3 per acre commission; upon the part of defendants it was the sale of their lands for the sum of $45 per acre net to them. Upon the accomplishment of these purposes the minds of both parties met. The record discloses the following to be undisputed: The words "May 9, 1914," the word "Fergus" before "County," and the description of the land, and the words "including crop now on the place except 1/2 of crop on N. 160," and the price "$45.00 per A. net," "the price $1,000," payment to be made at the time of entering into the contract, and the words "balance terms to be arranged," the word "notified" in the last line, and the signature "J. C. Miller, Trustee," are all in pen and ink handwriting. The above quotations are taken from the testimony of Lloyd D. Burton, the manager of the land department of the plaintiff. It was agreed upon the trial that the terms and stipulations of Exhibit B "have been on the part of both parties thereto fully complied with," that nobody was then in default, "and that the money has not been paid, and that the commission sued for has not been paid." Bralley viewed the land. It was priced to him by plaintiff at $48 per acre. He took immediate possession under Exhibit B, harvested and marketed the crops already planted and growing thereon, and from the proceeds paid the sum of $487.17 on the principal due January 1, 1915, leaving a deficit on the next installment due January 1, 1916, of $1,512.83. Bralley had no money, was in financial straits, and unable to meet the payments as they fell due. The record further shows that $487.17 was the only payment made upon the principal at all, and that the defendants are able, willing, and ready to pay plaintiff's commission when the same is earned and the purchase price fully paid.

Exhibit B also contained the following:

"In the event of a failure to comply with the terms hereof by the said party of the second part (Bralley), or either of them (the terms), the first party (defendants) shall be released from all obligations to convey the said premises or any part thereof; and the said party of the second part (Bralley) shall forfeit all payments made thereon which shall be considered as rental for the said premises, as it would be difficult to fix the actual damage to the party of the first part (defendants) by the said party of the second part (Bralley)."

There is oral testimony in the record, conflicting in character, concerning the time the commission would be due; but, as the intention of the parties is evident enough from the writings themselves, and the evidence would tend to vary them, no consideration need be given it.

A careful scrutiny of Exhibit A reveals that by the first paragraph plaintiff is made the agent of the trustee to sell the property described; by the second the minimum figure ($45 per acre) the trustee is to receive therefor and the terms the agent (plaintiff) is to make to the buyer "at time of entering into contract of sale" are fixed (the quoted words in print, "balance terms to be arranged," in pen and ink). By the third paragraph the trustee agrees to furnish abstract showing perfect title, and "at time of sale" agrees to pay the agent for selling said property "any amount he can get over the above price." By the last the trustee reserves the right to himself to sell or to list with other agents; and, "unless sale is made by myself, or other agents, this appointment will hold good until notified." With what degree of reason can it be contended that the whole tenor of the contract contemplated anything less than a completed sale? True, the printed words are "at time of entering into contract of sale." But they were there already, not inserted at the dictation of the trustee, so far as the record shows. They must, therefore, be subordinated to the written words. Section 5039 of the Revised Codes reads:

"Particular clauses of a contract are subordinate to its general intent."

The following section also has particular reference to, and is aimed directly at, a contract prepared as this was, as will appear by its language:

"Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts and the parts which are purely original control those which are copied from a form.

And if the two are absolutely repugnant, the latter must be so far disregarded."

Section 5041 reads:

"Repugnancy in a contract must be reconciled, if possible, by such an...