There is of course no evidence that the specific contract subsequently made between the defendant and the Bullard Engineering Company, or the identical work afterward performed under it, was in the actual contemplation of the plaintiff and defendant on June 15th, 1917.
The court did not so find. The plaintiff's evidence was that the prospect of more work from the Bullard people was held out to him as an inducement to enter the defendant's employ on the terms agreed, and that he took a chance to come up for the commission on the job already contracted for, "and then if I went on and worked for him on other jobs, I expected the same terms." We think this evidence fairly supports the finding which the court made, namely, that the agreement for commission was intended to apply to the second contract, if afterward obtained.
The second and third specifications of error, as stated on the brief, turn upon the absence of any direct testimony on the plaintiff's part that the ten per cent commission agreed upon was to be calculated on "net profits," and upon the claim that, in the absence of such *Page 100 evidence, the agreement for compensation, as testified to by the plaintiff, is too indefinite and uncertain to be made the basis of a claim for damages.
Both parties testify that they made a contract of employment on some express terms, but they differ as to the terms. The intention to make some such contract being admitted, the next question is what was the intent of the parties as communicated by their words in the sense in which they ought fairly to have been understood in the light of the circumstances under which they were spoken. Shortly stated, the evidence, so far as the trial court has found it to be true, is that the defendant had a contract with the Bullard Machine Tool Company for the construction of factory buildings on the basis of the owner meeting the cost of construction and paying the contractor a percentage thereon; and that under these circumstances the defendant asked the plaintiff to act as his general manager and superintendent of works and agreed to pay him "a ten per cent commission." It is certain that the percentage was intended to be calculated on some amount which the defendant expected to receive under the contract, and the defendant's brief seems to admit this, for the charge of indefiniteness as to the word "commission" is that it could have been applied equally well to the gross or net profits of the defendant. The intention to contract for a percentage compensation on some amount accruing to the defendant being apparent, the court was bound to look at the whole situation to see whether there was any definite or ascertainable amount which the parties probably had in mind. There was such an amount, namely, the amount of defendant's agreed compensation under the Bullard Machine Tool Company's contract, and when he agreed to pay the plaintiff in addition to salary "a ten per cent commission" for assisting him in carrying out that contract, *Page 101 we find no difficulty in interpreting that phrase, in the light of the circumstances, as meaning ten per cent of the defendant's agreed compensation.
The fact that other courts under other circumstances have found it impossible to say what was meant by similar language in other written contracts is not controlling.
The plaintiff has pleaded the agreement as one for a commission of ten per cent "on the net profit which the defendant would receive from the construction and erection of said Bullard buildings." We think this language is fairly descriptive of the compensation which the defendant was to receive under the Bullard contracts. They were contracts, as appears from the record, whereby the owners agreed to meet all costs of pay-rolls, materials and construction of the buildings contracted for, including wages of foremen, superintendents, and all incidental expenses, and to pay to the defendant "for his services and the use of his tools (Note: See detailed list attached) in construction of said buildings, a sum of money equal to ten per cent (10%) of the actual cost, as defined in Article 11 of this agreement."
The compensation thus agreed on may fairly be described under our rules of pleading as "net profit" accruing to the contractor from the construction of the buildings.
The litigated issue of fact was not whether the plaintiff's commission was to be calculated on the defendant's net profits, but whether the defendant had agreed to give him any commission at all. This issue has been found for the plaintiff, the plaintiff has rendered the services called for, and nothing remains to be done except for the defendant to pay the agreed commission. He seeks to escape that obligation on the ground that the parol evidence is insufficient to enable the court *Page 102 to say whether the agreed commission was to be calculated on his gross profits or on his net profits. For the reasons stated we think the evidence points very plainly to a commission on the defendant's contract compensation, and that there is no variance between the pleadings and proofs.
There is no error.
In this opinion the other judges concurred, except GAGER, J., who dissented.