Logan v. Dockray , 146 Mass. 296 ( 1888 )

C. Allen, J.

The defendant took from the plaintiff the assignment of the second mortgage, of the face value of $350, subject to a pri'or mortgage of $2,500 upon the same chattels, for Avhich he paid to the plaintiff $150 in money, and gave to him the written agreement declared on, by which he promised to pay to the plaintiff “ one half of the amount collected on said mortgage over and above $150”; that is, “ one half of the excess over $150 collected on said mortgage by me or my assigns.” The defendant now contends that he is only bound to pay one half of the net amount collected by him over and above the $150, after deducting certain disbursements and expenses. But the agreement does not admit of this construction. There is nothing in the agreement to show that it was understood that the defendant would necessarily be put to any disbursements or expenses, or, if so, that they would probably be considerable in amount. The defendant took his chance. He was to retain $150 at all events, to reimburse himself for the sum paid to the plaintiff, and also to retain one half of the excess above that sum. If he had meant the net excess, after deducting whatever payments he might see fit to make, he should have said so. But there is nothing to show that he did not consider himself sufficiently protected by the reservation of one half of the gross excess; and such is the meaning of his words.

Exceptions overruled.