Being unable to agree with the *Page 1279 majority opinion, I respectfully dissent. The opinion constitutes an able treatise on the principles of law involved and as such is not open to criticism. Indeed, I freely compliment the author for the laborious effort put forth in reviewing the many authorities.
My trouble arises when I come to the logic of the application of the principles of law discussed to the contract clause involved in the instant case. Here we have an absolute agreement evidenced by a written instrument upon which this law action is based whereby it is "acknowledged by both parties hereto thatupon the signing of this agreement by both parties hereto thereshall be due and payable" commission of $200 from each party. As thus stated, when this contract was signed, the commission was due and payable. There is no room for quibble; no occasion for interpretation or construction because no ambiguity is present. He who runs may read and reading understand exactly what was meant or intended. Later in the same paragraph, we find another reference to the commission which says it is "due and payableupon the transfer of the properties." As to the event which fixed the time of payment of the commission, the two clauses are absolutely repugnant to each other. In the first, the parties recognize the labors of the brokers to be at an end when they succeed in bringing the parties together in a completed sale evidenced by a written contract signed by the vendor and vendee; whereas, in the latter, an entirely different situation is recognized, namely, that no commission was earned or payable until and unless the properties were actually transferred, — in other words, upon the execution and delivery of the deed of conveyance.
If this writing does not contain two absolutely inconsistent and repugnant statements pertaining to an identical subject matter, then there is no way of expressing contradictory statements. One cannot stand without destroying the other. In this respect, the instant case is distinguishable from every case cited in the majority opinion in support of the same. Unless we apply the rule of construction which has been the rule since the days of Blackstone that "if there be two clauses so totally repugnant that they cannot stand together, the first will be received and the last rejected", we are left entirely to conjecture as to which event is to govern. Under all the authorities, there is no room for construction where the language is plain and *Page 1280 unambiguous and there is no room for the introduction of oral testimony to explain or vary such plain, unambiguous language. This above quoted rule, first announced in Blackstone's Commentaries, had its origin in necessity and it is brought into play because there is no other way of settling the matter without transgressing other salutary legal principles relating to proof and procedure. The majority opinion is a shining example of this transgression.
We have, by this opinion, found a way in a law action to reform a written instrument and make the same express the real intent of the parties as shown by the oral testimony of the surrounding circumstances. In other words, the evidence of surrounding circumstances discloses a case of mistake due to inadvertence in preparing the second draft of the contract, — a perfect case for reformation in equity —, and we have, in effect reformed this contract by adding the words "together with" in the third holding of the majority opinion and thereby have made a new contract for the parties. There isn't a word of testimony in the record that the parties ever intended the contract to be as the court has constructed it by judicial interpretation, namely, that the commission was "due and payable upon the execution of the contract together with the transfer of the properties." The first draft of the contract contained the clause stating the commission was due and payable when the contract was signed. When the contract was rewritten in its entirety, the second clause was added which says the commission is payable when the properties are transferred. Under the latter clause, no commission could be collected until the properties were transferred and under the latter clause the commission would be payable when the properties were transferred regardless of whether there ever had been a contract of sale signed or executed between the vendor and vendee. In other words, one of these clauses wipes out the other. It never was intended that these should both be left in the contract and both be given effect and they cannot be given effect without the connecting words, added by the court, "together with".
We agree that the facts present a case which would warrant a court of equity in reforming the contract but this may not be done in a law action and we are not permitted to accomplish the same result by interpretation and construction *Page 1281 where there is no ambiguous language employed. (Italics supplied.)
MILLER and SAGER, JJ., join in dissent.