Opinion
No. 21591.
June 4, 1951.
APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT, THOS. R. HUNT, J.
F. D. Glore, Kansas City, for appellant.
Paul Barnett, Kansas City, for respondent.
This action is one at law to recover commissions claimed to be due under a contract. A jury was waived and the case tried to the court. Defendant prevailed below and plaintiff appeals.
Plaintiff, C. Paul Leathers, is an industrial engineer doing business as C. Paul Leathers Company in Kansas City, Missouri, and as such procures business for a commission for his clients, helps them secure materials, makes designs, and renders other services. Defendant, Metalcraft Manufacturing and Sales Corporation, conducts a business such as its name implies in Kansas City, Missouri.
The contract upon which this suit is based is in the form of a letter from defendant to plaintiff. That letter, the pertinent part of which we italicize, is as follows:
"October 1, 1947
"C. Paul Leathers Company 1207 Grand Avenue Kansas City, Missouri
Dear Mr. Leathers:
"We agree to pay you a commission of 5% for a period of one year from date of first order on each item of work we receive from new accounts you help us secure. You will receive copies of all orders, invoices, and will be paid on the 10th of each month as we receive our money. Commissions may be changed up or down by both parties initialing a notation to that effect.
"You are to help us in securing machinery, materials, all in any way your facilities permit.
"At this time, you have coverage on Western Auto Store, Inc., Kansas City, Missouri, and Kelloggs, Battle Creek, Michigan, and Cook Paint Company, North Kansas City, Missouri.
"Signed Metalcraft Mfg. Sales Corp. Per Frank H. Gilbert Title President
"Accepted:
C. Paul Leathers Company Per C. Paul Leathers."
The draft of the letter was prepared by plaintiff and tendered to defendant, who, without changing the form of the language of the original draft, signed the letter on October 3, 1947. On that date plaintiff helped defendant procure an order from Western Auto Supply Company. Thereafter defendant received orders from Western Auto Supply Company within one year from the date of said order given on October 3, 1947, upon which, it is conceded, plaintiff was entitled to commissions under said contract. The total commissions to which plaintiff was entitled upon all of the orders (including the first) which were received by defendant from Western Auto Supply Company during the period of one year from October 3, 1947, amounted to $1,955.22. Defendant attempted to pay these commissions in full, but owing to a mutual mistake of the parties, defendant paid to plaintiff $1,939.31, or $15.91 less than the amount due. At the trial defendant admitted liability for $15.91.
On December 12, 1947, defendant received an order from the Western Auto Supply Company for a type of merchandise never before ordered, namely, a certain type of aluminum shelves. Thereafter, for a period of one year from December 12, 1947, additional orders for the same kind of shelves as those ordered on December 12, 1947, were received by defendant from the same customer. Some of these orders were received more than one year after October 3, 1947, the exact dates being October 6, 12, 18, and 21, 1948. Plaintiff's claimed commission on these orders received after October 3, 1948, amounts to $1,749.67. Thus plaintiff's suit for $1,749.67 is based upon the theory that, as to the type of shelves ordered on December 12, 1947 (there having been no previous order for that particular type), the one year mentioned in the contract started on December 12, instead of October 3, 1947. As stated, there is no dispute as to the liability of defendant to plaintiff for commissions on orders received within one year after said first order was received on October 3, 1947.
After considering oral arguments and briefs filed by counsel for both parties, the trial court found "that the year mentioned in the contract between plaintiff and defendant dated October 1, 1947, is a year beginning on October 3, 1947, which is the date when plaintiff received the first order from the new customer or `new account' mentioned in said contract, which said new customer or `new account' was the Western Auto Supply Company." Thus the court found that, except for the sum of $15.91 (which defendant conceded to be due), plaintiff was entitled to nothing. With that finding, we agree.
Plaintiff relies upon the well settled rule that where a contract is written in plain and unambiguous language it is within the province of the court to interpret and enforce the contract as written and not to make a new or different one. Thus on page 9 of his brief, plaintiff says that the trial Court's construction of the contract was to "ignore and delete the words `on each item of work.' That makes a different, a new contract for the parties, * * *." This is an erroneous conception. The court merely held that the words "on each item of work" did not modify the words "first order", but modified the words, "a commission of 5%."
If, as plaintiff contends, defendant contracted that it would pay a commission for all of each type of article sold to the new customer for a period of one year from the time he received the first order for that particular type of article, it could well be that the contract would never expire. It is not reasonable to suppose that a manufacturer would sign a contract if he understood that such a thing could happen, because he could not afford to pay a commission on subsequent sales forever, merely because someone had introduced him to a new customer.
In our opinion, the learned trial court gave each and every word of the contract a natural and reasonable meaning. Certainly it cannot be said that the contract is not fairly susceptible of the construction which the court placed upon it. If it is fairly open to two interpretations, that construction must be adopted which is most strongly against him who prepared it and most strongly in favor of him who merely signed it. Belch v. Schott, 171 Mo.App. 357, 157 S.W. 658. In the instant case the contract was drawn by plaintiff.
The judgment is affirmed.
All concur.