(dissenting) — The second amended complaint,' upon which this action was disposed of, alleges that* during the year 1917 and prior to November 5 of that year, the plaintiff entered into negotiations with the defendant to secure for him a contract to build the wooden vessels referred to.
“That the defendant then and there agreed to and with the plaintiff that, if the plaintiff secured the awarding of said contract to the defendant at a price of $305,000 for each vessel on the condition that the defendant would furnish suitable financial guarantees to build the vessels according to the plans and specifications to be furnished to him by said Pichot or his assigns, the defendant would pay to the plaintiff the full sum of five (5%) per cent of the full amount of said contract, as a commission to the plaintiff for securing said contract for the defendant. That in said negotiations said Pichot and his assigns were usually referred to as the French Syndicate. . . . That the plaintiff then and there stated to the defendant that he would not proceed with said negotiations unless he had a promise in writing from the defendant that the defendant would pay him said commission of five per cent for his services and unless the defendant would agree, in writing, toJ furnish a financial guarantee in the sum of at least $250,000 in the event that said contract was secured by the plaintiff for the defendant; that the defendant agreed thereto, and thereafter, in fulfillment of said agreement”
wrote and delivered the letters of November 5 and November 12, which are set out in the majority opinion. That the instrument of November 12 was used by appellant and exhibited to Eobert Pichot in their» negotiations, and that as a result of the services, work *389and efforts of the plaintiff, as agent of the defendant, a written contract in duplicate was entered into on February 27, 1918, by and between the defendant and Robert Pichot, whereby respondent agreed to build eight wooden ships at $305,000 each and Robert Pichot agreed to pay him therefor. It was further alleged that the defendant had refused to pay the plaintiff his commission.
The contention of the respondent is that the second amended complaint states only an oral contract of employment which is barred by the statute of limitations. But we think it must be held that the action is on the written instruments and that a cause of action is stated. It is alleged that the appellant refused to render services unless a written promise was given, and that pursuant thereto the writing was signed and delivered. In this view of the situation, respondent argues that the writing relied on, if it may be termed ambiguous, is too much so to be enforced, but that the real objection is not so much that the contract is ambiguous but that it is too vague and incomplete to create any contract at all for a commission, and must yield to the parol evidence rule. On the contrary, the appellant contends that the contract is clear, else it is a case for the application of the maxim, Id cerium est quod certum r.eddi potest. Both of these rules are well known in the law, and oftener than otherwise, if the writing in question is not perfect in all of its expres- . sions and essentials, the difficulty lies in deciding which of the rules is applicable.
The lack of scholarly language in .the letters from the respondent does not deprive them of being an en-forcible contract. Both of them were dated, addressed to and delivered to the appellant upon being signed by the respondent. The one says that:
*390“In regard to yonr statement that yon will award me a contract to bnild eight vessels for the French Syndicate at a price of $305,000 each less 5% commission, will say that I can furnish a financial guarantee, etc.”
And the other, a few days later, says:
“I hereby authorize you to state that I have secured my bond to guarantee that I will build the ships for the interests represented by Mr. Eobert Pichot.”
Why write and deliver these letters at all to the one to whom they were addressed? Clearly the appellant was not to sign a contract with respondent for the building of the ships. Then what was he to do ? Why did respondent authorize the appellant to state to the interests represented by Eobert Pichot that he, the respondent, had secured á bond to guarantee the building of the ships, unless he was speaking to his agent who was engaged in the business of procuring a contract that was not to be had without the furnishing of such a bond? Why speak of a five per cent commission in the letter to appellant if appellant (his agent) was not to get the commission which was thereby promised him? The amount is reasonably certain, and why call it a commission? No one was interested in the subject-matter of the letters except the appellant, the respondent and the French Syndicate represented by Mr. Pichot. Somebody was to get five per cent commission, and surely it was not the syndicate represented by Mr. Pichot, else respondent would have written of a contract to build eight vessels for the syndicate at a price of $305,000 each less five per cent discount, rather than commission.
But if it be admitted that the letters do require elucidation, we think they fall within the maxim heretofore referred to and which has been applied in a great number of cases, of which Strong v. Eldridge, *3918 Wash. 595, 36 Pac. 696, is typical. That was an action on an instrument as follows:
“Sehome, Washington............., 189...
“I agree to subscribe $1,500 towards getting the foundry at Pairhaven.
“E. Eldridge, for Eldridge and Bartlett.”
After Strong and Warner, who were not mentioned in the writing, had performed what was alleged to have been the undertaking on their part, they sued the makers of the instrument. A demurrer to the complaint was sustained in the lower court, but the judgment was reversed on appeal. Against the writing, it was contended that it was not in any sense a subscription, but only an agreement to subscribe at some future time upon some condition or under circumstances satisfactory to the signers, and that it could not be enlarged or its terms varied or changed by averments or by oral testimony. It was held, however, to be a subscription and not an agreement to subscribe, because of the language of the instrument and of the rule:
“And whether they did so agree must be ascertained from a fair and rational interpretation of the words actually used, when viewed in the light of surrounding facts and circumstances.”
Continuing the decision on that same feature of the case, it was said: *392whole instrument and surroundings, whether they have employed language accurately or not. Bishop, Contracts, § 404. See, also, Atwood v. Cobb, 16 Pick. 227 (26 Am. Dec. 658).
*391“While the words of a written instrument are usually to be understood in their ordinary popular sense, unless their meaning is defined by law, or has become peculiar by reason of usage as applied to some particular subject, yet in construing an instrument, if, from the subject or from the connection or object in view, it is apparent that the parties did not so employ them, or, according to their true definitions, they will receive the meaning thus shown to have been intended. The rule is to so interpret the words as to carry into effect the intent of the parties as derivable from the
*392“Moreover, ‘the true principle of sound ethics is to give the language of the promisor the sense in which he had reason to suppose it was understood by the promisee.’ Benjamin, Principles of Contracts, 111, citing: Hoffman v. Aetna Ins. Co., 32 N. Y. 405; Carpenter v. Wells, 65 Ill. 451, and other cases.”
It was further contended in that case that there was no privity of contract, there being no payee named in the instrument. The opinion was to the contrary, the court saying:
“But when a contract arises by reason of an offer or proposal by one party which is accepted and acted upon by the other, the person to whom the offer or promise is actually made may be shown by extrinsic evidence. Hopkins v. Upshur, 20 Tex. 89 (70 Am. Dec. 376); Swain v. Hill, 30 Mo. App. 436; Lathrop v. Knapp, 27 Wis. 222.”
While with respect to the claim that there was no expressed consideration to support the promise, it was said:
“The acceptance of the proposal of the respondents by the appellants, and their incurring liabilities upon the faith of it, created a complete contract upon a consideration moving from the promisee to the promisor. Cottage Street Church v. Kendall, 121 Mass. 530; Carr v. National Security Bank, 107 Mass. 45.”
See, also, Dyer v. Middle Kittitas Irr. Dist., 25 Wash. 80, 64 Pac. 1009; Reed v. Insurance Co., 94 U. S. 23. The Strong v., Eldridge case, supra, has been frequently cited by this court, and in Kanaskat Lumber & Shingle Co. v. Cascade Timber Co., 80 Wash. 561, 142 Pac. 15, the doctrine was admitted as elementary, although held not applicable to the facts in that case.
*393The rule stated in the case of Kanaskat Lumber & Shingle Co. v. Cascade Timber Co., supra, cited by the respondent, and the case of Cushing v. Monarch Timber Co., 75 Wash. 678, 135 Pac. 660, Ann. Cas. 1914C 1239, relied on in the majority opinion, is not applicable or controlling here for the reason that those cases involved the statute of frauds relating to contracts of the employment of agents to sell real estate, which, according to the general rule, as stated in the latter one of those cases, is that,
“A writing sufficient to satisfy the statute must be coextensive with the stipulations of the parties; that is to say, it must express the entire contract and leave nothing that pertains to the essentials of the contract to be supplied by parol.”
The contract mentioned in the present case is not controlled by any statute of frauds, but relates to the employment of an agent for the making of a contract for the building of ships; and if, as already stated, there be any indefiniteness about the written contract relied upon, it may be explained, under the allegations of the second amended complaint, according to the doctrine of the Strong v. Eldridge and other authorities hereinbefore referred to.
For these reasons, I dissent from the majority opinion, and think the judgment should be reversed.
Tolman and Pemberton, JJ., concur with Mitchell, J.