I. I dissent from the conclusion reached by DAVIS, C., in approving the opinion of the Kansas City Court ofUnambiguous Appeals. The contract construed, which forContract. convenience I reproduce, is as follows:
"To W.L. Morrison Inv. Co. for and in consideration of one dollar, the receipt of which is acknowledged, I hereby appointyou exclusive agent to make sale of the real property hereindescribed as Lots 9 and 10, in Block 4 Co'ds Brooklyn HillAddn. Known as 2210 E. 20th St. for the price of $4,000 netupon the following terms: $____ cash, cash $____, secured by mortgage thereon for ____ years at ____ per cent, and you are hereby authorized to accept a deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.
"In case above-described property is sold or disposed of within the time specified, I agree to make the purchaser a good andsufficient warranty deed to the same and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from suchsale no per cent commission on the above price; and 100 percent of all of the consideration for which said property is soldover and above price specified, and in case said property is sold within said time, either through you or any other person, then in that case I promise to pay you 5 per cent on the wholeamount for which said property may be sold. *Page 155
"This contract to continue until June 1, 1920, and thereafter until terminated by notice giving unto you as agent 10 days' notice in writing.
"(Signed) THOS. SANDBROOK. "(Signed) ______ _____ Witness."
The holding by the Kansas City Court of Appeals that this contract was ambiguous in relation to the terms of sale, is erroneous. In that respect the contract is clear and needs no parol explanation. One acquainted with the real estate business would understand at once that the seller, Thomas Sandbrook, was to convey the title to his property for four thousand dollars and pay no commission; the agent was to get his commission from the purchaser. All that purchase price was to go to Sandbrook, whatever portion of it he might use to pay debts against the place.
The contract relates solely to the compensation the agent should receive for services rendered. It has nothing to do with the state of the title nor with the incumbrance against the property, except it provides that Sandbrook shall "make the purchaser a good and sufficient warranty deed," which, of course means that he will clear it of all incumbrances. It was not a contract with the purchaser, and that stipulation was inserted so that the agent might make a specific contract with the purchaser. It was not necessary to mention the purchase price in the contract, except as a basis for determining the amount of the commission. The "$4,000 net" inserted with a pen in the printed form, probably was intended to clarify the contradictory statements in the contract in regard to the agent's commission, one to the effect that his commission should consist of any amount over and above the price of $4,000, the other to the effect that he should receive five per cent of the purchase price. These two stipulations, connected with the conjunction "and," might be understood to require payment of two commissions. The insertion of "4,000 net" precludes that understanding. Probably the form was printed in that way so that one or *Page 156 the other provision could be stricken out. Instead of that Sandbrook inserted "$4,000 net." The intention of the parties, as shown by the entire contract, would govern. There is no dispute as to the interpretation of that feature of the contract. The controversy arises over the claim of Sandbrook that the "$4,000 net" excludes the payment by him of his incumbrances, whereas the entire context shows it relates to the commission.
II. Further, no evidence was offered for the purpose of showing that the expression "$4,000 net," as used in a real estate agent's contract had more than one meaning, or that it required explanation. On the contrary, the only parol evidence offered was not for the purpose of clearing up an ambiguity, butParol for the purpose of proving a parol contract differentEvidence. from the written one. The evidence admitted tended to show that before the contract was entered into the parties reached an understanding different from that reduced to writing. In holding such evidence admissible, the conclusion of the Kansas City Court of Appeals was contrary to repeated rulings of this court; not only those mentioned in relator's petition, but a long line of which hold that a written contract may not be modified or changed by parol evidence, and cases which hold that all prior negotiations are merged into a written contract afterwards entered into.
For these reasons I dissent from the conclusion reached by the learned Commissioner, and think the judgment of the Kansas City Court of Appeals should be quashed. *Page 157