#### Pate v. Goyne.

4-8254

204 S. W. 2d 900

Opinion delivered October 13, 1947.

Boyd Tackett, for appellant.

Abe Collins, for appellee.

Grieein Smith, Chief Justice.

W. B. Goyne, a resident of Kilgore, Texas, authorized his son, L. A. Goyne, to sell 450 acres of Sevier County land. The son, who lived at Lockesburg, Ark., listed the property with Oscar J. Pate, a realtor, at $11,500. There was a dispute re-*52gar ding the son’s authority, but this becomes unimportant in view of conclusions we have reached.1

The contract of June 22, 1945, was that for a period of twelve months Pate should have the exclusive right to sell. Such agency should continue until terminated by written or oral notice. If the property were sold by Pate “during the twelve-month period”, Goyne was obligated for a commission of $575. The concluding paragraph is: “I further agree to pay said commission to Oscar J. Pate if said property be sold or otherwise disposed of by any other person, firm, or corporation including the undersigned, during the above period, or after the above period, on information given, received, or obtained through this agency”.

L. A. Goyne made a. direct sale, for $11,500, without reference to Pate. The latter claimed five per cent, and sued when refused. With completion of evidence -each side requested a directed verdict and neither asked other instructions. The Court then made findings of fact and declarations of law. An appeal is from a judgment disallowing the commission.

Pate testified that immediately after the contract was signed he began making seller-buyer contacts. A prospective purchaser in Louisiana desired information not disclosed with the listing. Thereupon the agent wrote L. A. Goyne that an interested “prospect” wanted to be clear as to certain details. This letter was dated June 27th. Goyne replied the following day, stating that during the preceding night he had sold. He also said, “If you have been out any money I will pay you when I see you”. Pate construed the contract to mean that even if the landowner made a direct sale irrespective of information given or effort exerted by him, the commission had been earned because the contract was exclusive.

The Court found (a) on a disputed question of fact that L. A. Goyne was authorized by his father to make the contract, but (b) that the owner reserved the right *53to act on Ms own account “. . . unless said property be sold by, or tbrougb information given, received, or obtained through [Pate]”.

We sustain tbe Court’s declaration of law.

Tbe instrument was prepared by or for Pate. Tbe caption is, “Exclusive Listing Contract”. Tbe consideration mentioned in paragraph 1 is services rendered and to be rendered “in selling or assisting [Coyne] to sell or exchange tbe property”. Tbe second paragraph provides that if tbe lands are “sold or otherwise disposed of by Oscar J. Pate” tbe commission is earned.

Clearly tbe two paragraphs are so worded as to justify tbe belief by one to whom a service offer is made that compensation does not become due until a sale has been effectuated tbrougb efforts exerted by tbe agent or by reason of services, for there is tbe expression “if tbe property be sold or otherwise disposed of”. But tbe final paragraph adds materially to what has gone before. Here it is stipulated that tbe commission is earned “if said property be sold or otherwise disposed of by any other person, firm or corporation including tbe undersigned”. If tbe contract bad ended there its intent would have been clear, and a sale by tbe owner would be tbe equivalent of a sale by tbe agent. In brief, tbe mere fact of listing, coupled with anticipated efforts in procuring a purchaser, would be sufficient consideration. If tbe owner sold there would be a conclusive presumption tbe commission bad been earned, and purpose of tbe contract served.

Tbe parties, however, chose to limit tbe liability by adding “. . . on information given, received, or obtained tbrougb this agency”.

It is conceded that Pate was not in touch with the .actual buyer. Tbe first knowledge be bad that this purchaser existed was when Groyne’s letter of June 28th was received; hence we must consider tbe contract as though it read, “I agree to pay said commission if tbe property is sold by any other person, firm, or corporation (in-*54eluding the undersigned) on information given, received, or obtained through this agency”.

Where there is inconsistency between general’and specific provisions, the specific provisions ordinarily qualify meaning of the general provisions, and where words or other manifestations of intention bear more than one reasonable meaning an interpretation is preferred which operates more strongly against the party from whom they proceed, unless their use by him is prescribed by law. Restatement of the Law, “Contracts”, Ch. 9, § 236, (c-d). This rule, says American Law Institute, is based upon the conclusion that ‘ ‘ Since one who speaks or writes can, by exactness of expression, more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity of language are resolved against the former in favor of the latter”. See W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6, 121 S. W. 2d 886.

We are not dealing with a case where nature of the ambiguity justifies introduction of parol evidence and where the Court refused to submit the issue. Witnesses were heard and a determination of the facts was left to the Judge. .

It having been found that Coyne did not sell on information “given, received, or obtained” through Pate, the Court did not. err in holding against liability.

An appeal was, taken from the Court’s holding that L. A. Coyne had the right to sign his father’s name to the contract. This issue is eliminated by our construction of the third paragraph.

Affirmed.'

1

L. A. Goyne, as a witness at the trial resulting in this appeal, testified that although his father told him to sell the land, there was an express direction that it should not be listed with the real estate agent.