Elting v. Sturtevant

Carpenter, J.

This record presents two questions for our consideration.

1. Was the testimony of Mr. Hooker admissible ? The point to be proved was the value of the plaintiff’s services in purchasing a mill for the defendant. The testimony of Mr. Hooker, who was a real estate broker, proved what his charges would have been for the same services. It was not *181 offered as fixing the rule of damages, hut as tending to prove the point in issue, and for that purpose we think it was properly received. The price ordinarily charged for such services by persons engaged in that business might well be considered by the court in determining what the plaintiff’s services were reasonably worth.

2. Sometime after the purchase the plaintiff received for his services the sum of one hundred dollars, and gave therefor the following receipt:—

“ Norwich, July 2d, 1863.

“ Received from the Norwich Woolen Company one hundred dollars commission on purchase of mill.

William Elting.”

The defendant claimed that this receipt was a receipt in full of the plaintiff’s commission for purchasing the mill, and requested the court so to rule. The plaintiff claimed that it was not given as a receipt in full, but on account only. The defendant’s claim involved a question of law, and was in effect a request that the court would declare the legal effect of the receipt. The plaintiff’s claim seems to involve a question of fact merely. There is perhaps a little uncertainty as to what the plaintiff meant, and how it was regarded by the court below. If it is to be understood as a request that the court would find as a fact that the parties, at the time the money was paid and the receipt given, understood and intended it as a payment on account only, that presents a pure question of fact, and the finding of the court upon that point, assuming that evidence as to the intention was admissible, would be conclusive. We think it cannot properly be regarded in that light for two reasons; first, there is no express finding to that effect, and none can be implied because the motion will admit of another construction; secondly, the plaintiff’s claim, as thus understood, would not be responsive to the claim of the defendant. But if we regard it as a request that the court would hold- that the legal effect of the receipt was not a receipt in full but a receipt in part only, it explains the absence of any finding as to the intention and *182 understanding of the parties, is responsive to the claim of the defendant, and makes the action of the court responsive to the claims of both parties. Eor the motion, after stating the claims of the parties, states the action of the court thus :—“ The court held that the plaintiff was not precluded by said receipt from recovering what his services were reasonably worth.” This is apt and appropriate language to express the ruling of the court upon a question of law, and inappropriate when applied to a question of fact. This construction of the motion makes it intelligible, and consistent with itself.

The question then is, whether the court was right in construing the receipt as a receipt on account and not a receipt in full.

If it was clear that the parties understood the transaction alike and intended by it one and the same thing, the duty of the court would be equally clear. But the difficulty is that there is reason to believe that the party receiving the money and giving the receipt understood it in one way, and the party paying the money and taking the receipt understood it in another. In such a case, the language being ambiguous, we ought to construe it as understood by the party taking it, especially if the circumstances will justify the inference that the other party knew that he so understood it.

The receipt is not expressed to be “ in full,” nor “ on account.” It will admit of either construction. What then are the circumstances ? There was no running account between the parties. The plaintiff had performed a single act of service for which he was entitled to receive compensation. The defendant sent an agent to pay him, not in part, but the whole claim. Money having been paid, the presumption is that it was in full unless the contrary appears. There was no agreement as to the amount the plaintiff was to receive. He was asked to name a sum, but he declined. The defendant’s agent therefore named a sum, which the plaintiff received, and, so far as we know, without objection. No claim was made that it was insufficient, and no intimation given that a further sum would ever be required. The de *183 fendant would naturally suppose, and the plaintiff must have known it, that the sum paid was received in full for the whole demand. Suppose a house is sold. The purchaser proposes to the seller to pay him for it; the seller declines to name a price, and the purchaser pays what he considers reasonable, which is accepted without objection or qualification. Can it be doubted that the house is fully paid for ? In" principle that is precisely this cáse.

But, independent of any extrinsic circumstances, we are inclined to think that the better construction of the language of this receipt will make it a receipt in full. The language is explicit:—“ One hundred dollars commission on purchase of mill.” It is a reasonable inference that he intended the whole commission and not a part of it. The case of Fuller v. Crittenden, 9 Conn., 401 , strongly countenances, if it does not directly decide, this point. One item in the bill rendered was, “ Cost of procuring the mail contract, $50.” The bill was receipted in full. The court held, in the absence of, mistake or accident on the one hand, or fraud or imposition on the other, that the receipt was in full for the whole cost of procuring the mail contract. In this case there is no pretense of accident or mistake, fraud or imposition.

But there is another circumstance in this case, which, if resorted to, would turn the scale against the plaintiff. This receipt was written and signed by the plaintiff himself. The language is his, and, if ambiguous, should be taken most strongly against him and most favorably for the other party. Conceding that in every other respect the plaintiff’s claim is equal to the defendant’s, which is certainly all that can be claimed for it, the application of this rule would defeat his claim.

Eor these reasons we advise a new trial.

In this opinion Park, C. J., and Pardee, J., concurred. Phelps, J., dissented. Poster, J., having tried the case in the court below, did not sit.