I concur in the judgment. The contract of December 29, 1899, provided that the plaintiff should receive seventy-five hundred dollars for his services in "the sale of the tract of land on Little River and Maple Creek, known as the `Pearsall deal,'" and that the money should become due when the sale was consummated. The complaint avers that the sale had been consummated before the action was begun. The answer denies this allegation. It, therefore, became a material issue in the case whether or not the sale referred to in the agreement had been consummated at the time the action was begun. The above-quoted clause is ambiguous, and for this reason it was competent to introduce parol evidence of the circumstances under which the agreement was executed for the purpose of determining therefrom what was meant by the phrase "Pearsall deal." Upon this question the evidence was conflicting. The theory of the plaintiff was, and there was evidence in support of it, that prior to the execution of either of the contracts referred to the plaintiff and the defendant, with others, were engaged in the enterprise of obtaining options from a large number of owners of small tracts of timber land for the purpose of obtaining control of a large body of such land, and making a sale thereof to some third person, and that this particular enterprise was what was known as the "Pearsall deal," and that in the light of this testimony the sale of the tract known as the "Pearsall deal," mentioned in the contract sued on, meant any sale of the particular tract which was then under the control of the parties to any person. The theory of the *Page 698 defendants, on the other hand, was, that at the time the contract of December 29th was executed the only deal in contemplation between the parties, and the one referred to in the contract sued on, was the sale to B.F. Durphy of the particular tract of land upon which they had previously obtained options, being the sale referred to in the agreement of March 17, 1899, set forth in the opinion of Mr. Justice Van Dyke, and that as this sale had never been consummated the plaintiff was entitled to no compensation. It was a question for the jury to determine which of these two interpretations of the ambiguous phrase of the contract was the real expression of the intention of the parties.
Upon this point the court instructed the jury that the contract could be explained by reference to the circumstances under which it was made, and the matter to which it relates, in case the intention could not be ascertained from the writing alone, and that if they found that it was understoood by the contract that the plaintiff should have no claim against the defendant for services in the sale of the land unless the same should be sold to Durphy or his agent, or some person suggested by him, and that the sale was not made to such person, then they should find for the defendant; but that if they found that it was the intention of the parties that plaintiff should receive the compensation specified, no matter to whom the lands should be sold, and that thereafter the defendant sold the land to third persons, then the verdict should be for the plaintiff for the sum sued for. This is undoubtedly correct, and the only criticism to be made is, that it directs the jury more to the ultimate conclusion to be reached by it than to the particular facts which it should find in order to arrive at the conclusion. It would have been better, for instance, if the court had instructed the jury to ascertain from the circumstances the meaning of the phrase "Pearsall deal" as used in the contract sued on, and that if they found it was meant by the parties to refer to the particular sale of the land to Durphy or his agent, or to some one suggested by him, as provided in the previous agreement of March 17, 1899, and that such sale had not been made, then they should find for the defendant; but that if they found that the parties customarily used the phrase "Pearsall deal" not to designate any particular sale of lands, but to designate a particular *Page 699 tract or aggregation of tracts of land, upon which they had procured options for the purpose of making a sale thereof in one body to any purchaser who could be found at a satisfactory price, and that it was used in this sense in the contract sued on, and that thereafter a sale of said lands had been made by the defendant, then the plaintiff should recover.
But the instructions given were in substance to the same effect, and I do not think they could have been misleading to the jury. There was evidence sufficient to sustain the verdict upon the theory contended for by the plaintiff.
Angellotti, J., concurred with Shaw, J.
Hearing in Bank denied.