Cook v. Rockwell , 233 Mich. 64 ( 1925 )

Plaintiff, a real estate agent at Vicksburg, had effected an exchange of an apartment building in Allegan for a farm near Vicksburg for defendant. To complete the deal, defendant gave a mortgage on the farm for $3,200. On the same day, defendant prepared in his own handwriting and delivered to plaintiff the following memorandum, signed by both of the parties:

"This agreement by and between Burke C. Cook and C. Rockwell said Mr. Cook has the right to sell the Rockwell property one mile east of Vicksburg of 133 acres until March 1, 1924. And is to pay to said Rockwell, ten thousand dollars, net. No commission going to Mr. Cook. He is to have all over $10,000 which property brings. Mr. Cook has the exclusive handling of sale to March 1. This contract expires on March 1, 1924. Terms, cash with mortgage back that the First State Bank will accept at face value.

(Signed) "C.F. ROCKWELL,

"BURKE C. COOK."

Plaintiff produced a purchaser of the farm for $11,000. He here sues defendant to recover $1,000 as due him under the listing agreement. There was a dispute over the word italicized in the agreement. Plaintiff insisted it was "with," while defendant claimed it was "net." At the conclusion of the proofs, both parties moved for a directed verdict. Decision was reserved. The jury were instructed that if the word in dispute was "with," their verdict must be for plaintiff, but, if it was "net," they should find for defendant. The jury found, in answer to a special question, that the disputed word was "net," and rendered a verdict for defendant. On plaintiff's motion for judgment non obstante veredicto, the verdict was set aside and a judgment entered for him. This, defendant reviews on writ of error.

The contract is in writing. There is no ambiguity in the language used. There is no claim that it was modified in any way. It was the duty of the court to construe it.

The defendant drew the instrument, and it must be inferred that he intended to clearly express his intent therein. We quote from the brief of his counsel:

" 'Net,' according to Worcester, is 'that which remains after the deduction of all charges or outlay, as net profit.'

"Webster says that 'net' means: 'clear of all charges and deductions.'

"Both of these definitions were cited with approval by Mr. Justice Swayne. St. Johns v. Erie Ry. Co., 22 Wall. (U.S.) 136-150; 29 Cyc. p. 670.

"Where the letter or statement to the broker was, 'I will take $7,000 net to me,' the court held that it was the intention that the property should bring the owner that sum free of all expenses. Gibbs v. People's Nat. Bank, 198 Ill. 307 (64 N.E. 1060)."

It clearly appears that defendant was to receive $10,000 for his farm. No deduction for expenses or charges were to be made. The agreement provides that the plaintiff "is to have all over $10,000 which property brings." If we had any doubts as to the meaning which we should give to the word "net," this latter provision would remove it. In our opinion, the trial court was clearly right in the construction he placed upon the instrument.

The judgment entered is affirmed, with costs to appellee.

McDONALD, C.J., and CLARK, BIRD, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred.