Hopewell Heights Development Co. v. Kagay-Marshall Realty Co.

Sims, J., after making the foregoing statement, delivered the following opinion of the court. In the view we take of this case we shall consider it upon the assumption that the rights of neither party under the contract were prejudiced by the payments made by the vendor to the agent, which were in excess of the 20% commission admittedly due the latter. And— 1. The sole question before us is whether the proper construction of the contract itself is that given to it by the learned judge of the court below, namely, “that twenty per cent, of the list price and one-half of the overage together constitute the commissions provided for in the contract.” The material facts and what is meant by “list price,” or “list prices” and by “overage,” as such terms are used in the record in this case, all appear from the statement preceding this opinion. That part of the contract of which the construction is drawn in question before us is contained in the fifth clause thereof, and is as follows: “It is agreed that the” * * (agent aforesaid), “shall receive a commission of 20% on the above prices” (referring, to the list prices aforesaid), “and one-half of the overage on the prices which may be placed upon said lots” (referring to the actual selling prices, aforesaid) “over and above the prices mentioned herewith” (referring to the said list prices), “said commissions to be paid three-fourths of the collections received on sales until they are paid in full * *” There is a manifest typographical error in the omission of the words “out of” or words of similar meaning, between the words “paid” and “three-fourths” in the clause last quoted. There is no controversy in the case as to that. The position of the vendor is, in substance, that the words “said commissions to be paid (out of) three-fourths of the collections received on sales until they are paid in [82] full,” refer only to the ^commission of 20% on the list prices aforesaid.” That the contract, it is true, provides for an additional compensation to be paid the agent for making sale of the lots, namely, one-half of the “overage” aforesaid, but that the contract does not provide when such compensation is to be paid; and that the true meaning of the contract is that such part of the overage is to be paid by the vendor only after it has first actually collected the total minimum amount of the list price of all of the lots, (approximately $94,200.00 as aforesaid), and out of the actual collections of such “overage” made thereafter. That, in other words, as to the “overage,” the contract is, in effect, that the vendor will pay the agent one-half of any amount over and above the sum of $94,200.00 (approximately) which the agent 'might succeed in obtaining for the property—and the cases of Peters v. Anderson, 88 Va,. 1051, 14 S. E. 974; Munroe v. Taylor, 191 Mass. 483, 78 N. E. 106; Hinds v. Henry, 36 N. J. L. 328, and other cases, which involve, such character of contracts, are cited to support the position that the “overage” compensation to the agent in the case before us is not due or payable except out of the excess collections by the vendor over and above the said total of the list prices aforesaid for which as a minimum the propérty was to sell (viz., $94,200.00, approximately, as aforesaid). . These authorities are applicable and controlling in favor of the vendor, if such was the nature of the contract. But • we do not so construe the contract. We must construe the language which the parties use in the contract. That language, as used in the fifth clause of the contract seems plainly to fix all of the compensation to be paid the agent by the prices at which the agent may and does sell the lots. The agent is to receive a minimum compensation of “a commission” (in the singular number), “of 20 %” on the total of the list prices of the lots sold, and, in addition thereto, one-half of the difference between the [83] total of list prices and the total of the actual selling prices of the lots sold, “said commissions” (in the plural), “to be paid (out of) three-fourths of the collections received on sales until they” (in the plural) “are paid in full.” The agent was entitled to no commissions except on the lots actually sold. And the minimum compensation of the agent, as fixed in the contract, is based on selling prices, not collections, except as affected by the limitation that such compensation should not exceed “three-fourths of the collections received on sales.” Similarly, the additional compensation to be paid, the agent, of the one-half of the “overage,” as fixed in the contract, is based on the selling prices, not collections, except as affected by the same limitation that such compensation, together with the minimum compensation aforesaid, should not exceed “three-fourths of the collections received on sales.” There is no distinction made in the language of the contract between the “collections” out of which any of the compensation to the agent is to be paid. The compensation which is to be paid out of three-fourths of the collections is referred to in the contract in the plural (as “commissions”) whereas, the minimum percentage compensation is referred to as “a commission;” and “they” are to be paid as aforesaid, as provided in the contract, “until they are paid in full.” We are of opinion, therefore, that the contract is not silent as to when the “overage” compensation to the agent is to be paid, but is a complete contract on that subject, as well as on the subject of the 20% commission provided for therein. We think that the contract on the face of it provides how and when the whole compensation to the agent is to be paid, namely, out of three-fourths of all collections of purchase money made by the vendor. Hence, we find no error in the judgment under review, and it will be affirmed. Affirmed.