Laing v. Holmes

ELLISON, J. — This is an action to recover five hundred dollars, claimed to be due under a mining lease made by [233] plaintiff to defendant. The judgment in the trial court was for plaintiff for $164.20, and defendant appealed. The lease provided that defendant should pay plaintiff as rent or royalty, fifteen per cent of the market value of all ores mined and sold during the preceding week “and $500 additional out of the first six months’ profits of this lease.” The suit is for the $500, specified, and the point for decision is the construction of the clause quoted. The defendant contended in the trial court that the clause meant the profits of the first six months of the lease, beginning with its date, and as there were no profits during that time, nothing was due. Plaintiff’s view was that the true intent and meaning was the profits of the first six months in which profits were made. The clause is quite ambiguous, not only in the opposing points of view just stated, but in many other respects which have been suggested by counsel. Fortunately, however, the parties themselves have interpreted its meaning, and that was properly the construction adopted by the trial court. When contracts are written in such a way as to be of doubtful meaning, the construction given by the parties will be adopted by the courts. Sedalia Brewing Co. v. Sedalia Water Works, 34 Mo. App. 49; Williams v. Railway, 153 Mo. 487; Carter v. Foster, 145 Mo. 383; Wetmore v. Crouch, 150 Mo. 671. Some days after the expiration of the first six months of the lease, written demand was made on defendant for the $500 named in the lease. He answered this in a letter of November 26, 1898, saying that he “had made no profits yet. However, I think it will pay all right before long, and I will gladly pay when the profits come” (italics ours). From this it is evident that the contract was not understood as confining the profits to what might be made the first six months of the lease. As to the mode of ascertaining the profits, the contract fixed a period of six months when profits were earned, and the profits were to be ascertained by result of such period. Defendant had ho right to claim that expenses at a period [234] prior to that were to be deducted from the earnings of that period, and the court properly confined expenses to the period which measured the profits. The judgment was manifestly for the right party, and is accordingly affirmed. All concur.