Sutliff v. E. Seidenberg, Stiefel, & Co.

Plaintiff, assignee of Charles J. Simon, brought the action against defendants for services rendered and commisisons earned by said Simon under the following contract: —

SAN FRANCISCO, June 16, 1894.

"In consideration of Mr. Charles J. Simon assisting our distributing agents, Messrs. Adelsdorfer and Brandenstein, to make a success of our line of cigars in San Francisco and other territories allowed as per contract with Adelsdorfer and Brandenstein, and for all services necessary to represent our interest, we agree to pay Mr. Simon five (5) per cent commission on all sales made in California and above-mentioned territories, sold by Messrs. Adelsdorfer and Brandenstein, or any future house we may select. This arrangement to remain in force as long as our goods find ready sale on this Coast. Commissions to be paid monthly.

"(Signed) E. SEIDENBERG, STIEFEL CO."

Defendants interposed a general demurrer to the complaint which was overruled, and they answered, admitting the execution of the contract, but denied that Simon had rendered any service under it or complied with its terms; they also alleged a modification of the contract in January, 1895, and also that they discharged Simon in May. 1895.

The cause was tried by a jury, and plaintiff had a verdict for $1,236.81. On hearing the motion for a new trial, *Page 65 the court made an order overruling the motion, on condition that the plaintiff remitted the sum of $517.25 from the amount of the verdict. This was done by plaintiff, and defendants appeal from the order alone.

1. The point chiefly relied on by appellants is raised by the demurrer, and also by an exception to the ruling of the court in admitting the contract in evidence when offered by plaintiff. It is claimed that the contract is void for uncertainty, in this: that there is no certain promise on Simon's part to assist Adelsdorfer and Brandenstein "to make a success of defendant's line of goods"; that it is not possible to determine what is meant by "assisting to make a success"; that the word "success" is itself too indefinite to give certainty to the contract; that the contract set out refers to another contract, which is not stated.

"Where a contract has but a single object, and such object is . . . . so vaguely expressed as to be wholly unascertainable, the entire contract is void." (Civ. Code, sec. 1598) We must give the contract such an interpretation as will make it "operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties" (Civ. Code, sec. 1643); and we must give to the words of the contract the meaning as used in their ordinary and popular sense. (Civ. Code, sec. 1644) If the terms used are ambiguous or uncertain, the promise must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." (Civ. Code, sec. 1649) A contract may be explained by reference to the circumstances, under which it was made and the matter to which it relates. (Civ. Code, sec.1647) Read in the light of these rules, the contract seems to us quite intelligible and certain. Defendants were doing business as cigar manufacturers in New York City, and desired to make a market for their goods in California. Adelsdorfer and Brandenstein, who were merchants in San Francisco, were made their distributing agents, and Simon was to assist them in introducing the goods to the public. Defendants not only spoke in the contract of making their line of cigars a success, but they further explained their meaning in the clause, "and for all services necessary to represent our interest, we agree to pay," etc., and by the clause, "this agreement to remain in force as long as our goods find ready sale on this Coast." Whatever of uncertainty there *Page 66 may be in the meaning of the clause, "to make a success of our line of cigars in San Francisco," seems to be cleared up, at least sufficiently as against a general demurrer, by the subsequent clauses. There is no appeal from the judgment, and the only question is, whether the complaint states a cause of action sufficient to sustain the judgment. We cannot say that the contract is so "vaguely expressed as to be wholly unascertainable," and we must hold that the general demurrer was rightly overruled and the testimony offered properly admitted.