Gaty v. Clark

Hall, J. All the evidence, that of both parties, showed that the exception or reservation, which in the contract read, “ If sold by a party sent by Mr. Repp, of this week, then no commission to be paid ; also A. Ozia” should have read, “If sold to a party sent by Mr. Repp, of this week, then no commission to be paid ; also A. Ozias.” The principal, and in fact the only serious controversy, at the trial, between the parties to this case, was as to the meaning- of the exception as thus modified and explained by the evidence. The defendant contended that the exception designated the men only, to whom a sale of the land might be made at any time without the payment of a commission to plaintiff. The plaintiff contended that the exception designated both the men to whom, and the time in which, a sale of the land might be 'made, without the payment of such commission. The court found in favor of plaintiff’s contention, and we think that it correctly so found. By the exception, a sale to Repp’s man is limited to one week. The exception, with its limitation .as to time, is extended also to A. Ozias. This is clearly the meaning of the language of the exception, as corrected and reformed by the testimony of both parties. This was also the intention and agreement of the parties, [340] according to the testimony of the plaintiff and of other witnesses in the case. The court, therefore, properly refused the declarations of law, numbered one and three,, asked by defendant. To the third declaration of law given for the plaintiff the defendant makes the objection that it ignores the exception in the contract, treats the contract as unconditional, and authorizes a recovery notwithstanding the exception. The court, sitting as a jury, tried the case. The declarations of law given are, therefore,, useful only as showing the theory on which the court tried the case.. If the construction given to the exception in the contract by us is correct, under the evidence, the exception -in no manner affected the plaintiff’s right to a recovery. The declaration of law simply states this in effect, and hence could not have injured the defendant. II. The defendant contends that the answer set out the reservation in the contract; that it alleged that, under the reservation, no commission was to be paid if the land was sold to Ozias, and that it avers that the land was sold to Ozias; that plaintiff, in his reply, denied all these allegations of the answer, and then on the trial introduced evidence tending to show the existbnce of the reservation, but that it was to last for only one week, and that the land was sold to Ozias after that time; and that such evidence was incompetent under the pleadings, and the defendant’s second instruction, excluding that evidence, should have been given. We waive all question as to the sufficiency of the allegations of the reply as a denial of the allegations of the answer, for the reason that the parties treated the reply as such a denial, at the trial of this case. Edmonson v. Phillips, 73 Mo. 63. This action is based upon the written contract between plaintiff and defendant. The contract was filed with the petition. The petition alleges a sale in accordance with the terms of the contract. The sale is alleged [341] generally. The person to whom the sale was made is not named. Under the allegations of the petition the plaintiff could have shown a sale to any one, provided the sale was made in accordance with the terms of the contract. It is true that the answer sets out the reservation in the contract, pleads that the effect of it is to cover- a sale to Ozias; and alleges a sale of the land to Ozias, and it is true that the reply generally denies the new matter set up in the answer. But we do not believe that the reply has .the effect to limit, in any degree, the allegations of the petition. The plaintiff’s cause of action is still based upon the allegations of the petition. It. is in no manner founded upon the reply. Under the pleadings it was competent for plaintiff to establish a sale to A. Ozias in accordance with the terms of the contract. The judgment is affirmed. All concur