Whitaker v. Old Dominion Guano Co.

The plaintiff made an assignment to the defendant Purvis in trust to secure his creditors. On default the trustee advertised a sale of the property on 4 April, 1891. After chaffering, the plaintiff and the trustee agreed to postpone the sale until December, 1891, and among other things, they agreed in writing that the plaintiff should make certain payments "and (pay) the costs and charges of advertising, etc., of the mortgage." The trustee afterwards advertised again, and the plaintiff obtained an order restraining the sale on the ground that he had paid the debt, including "all lawful charges thereon." The trust deed provides that the trustee shall receive as a compensation 5 per cent commissions "on the sale of the whole of said land sold, etc." When the cause was heard, his Honor rendered judgment that the trustee "is entitled to commissions provided for in the deed of trust." No sale was made. The plaintiff appealed, and the trustee's right to commissions is the only matter for us to determine.

The same question was presented in Pass v. Brooks, 118 N.C. 397, and it was held that the trustee was not entitled to commissions, and the reasons given. It was also held, on the authority of Boyd v. Hawkins, 17 N.C. 336 (2 Dev. Eq.), that the trustee was entitled to "a (370) just allowance for time, labor, services, and expenses under all the circumstances that may be shown before a master" when the court sees fit to make it. These cases were followed in a similar case — Fryv. Graham, 122 N.C. 773. The defendant, however, insists that the word "etc." in the contract means and includes commissions in its connection, and relies on Gray v. R. R., 11 Hun. N. Y., 70. That was a boat contract, and the defendant agreed to take the boat "provided, upon trial, they were satisfied with the soundness of her machinery, boiler, etc." The Court held that the word "etc." was for construction by the court, and was not for the jury, and that "etc." meant "other things," that is, other material parts of the boat.

In Hayes v. Wilson, 105 Mass. 21, the contract was for "sixty-one days work on house, etc." The court allowed the jury to consider whether "etc." included work on the lot around the house. Another case was a sale of "china, wearing apparel, linen, etc.," and the last word was held to include things ejusdem generis; also, "all my furniture, etc.," includedthings ejusdem generis.

It would probably be safe to say that in these, and other like cases where the sense of the abbreviation may be gathered from the preceding words, there is sufficient certainty; but where the abbreviation cannot be understood and affects a vital part of the contract or instrument, the uncertainty will be fatal.

The word "etc." (et cetera) in the case before us does not necessarily mean commissions. It may mean expenses and moneys necessarily expended in the legitimate discharge of fiduciary duties. Commissions mean compensation for selling; charges and expenses are incidental and for money paid out in the discharge of the duties of the office.

Without undertaking to harmonize the nice distinctions above (371) referred to, we think it better to adhere to the plain rule laid down in the first three cases cited above, and in doing so we find the judgment erroneous in allowing commissions, upon the agreed state of facts.

Error.

Cited: Turner v. Boger, 126 N.C. 303.