#### Abraham H. Ettenson, Plaintiff, *v.*Isaac Mendelson, Israel Mendelson and Julius Mendelson, Trading as J. Mendelson & Bros., Defendants.

(City Court of the City of New York, Trial Term,

January, 1912.)

Contracts — Parties and persons by whom or against whom enforceable — Compensation dependent on profit —Actions on contracts.

Where, in addition to a salary and traveling expenses, defendants who employed plaintiff as a traveling salesman agreed to pay him a commission of five per cent, in excess “ to $40,000 ” sales made by him and shipped by defendants, the word “ to ” is synonymous with “ of,” the clear, unambiguous intention of the parties being that before plaintiff would be entitled to commissions the sales made by him were to exceed $40,000.

Decision after verdict on question of law reserved by stipulation.

Rudolph L. Cherurg, for plaintiff.

Thomas & Oppenheimer, for defendants.

Fihelite, J.

On the trial of this action a verdict was, on consent of the defendants, directed in favor of the plaintiff for- the sum of $150, being the amount o'f salary due the plaintiff for the month of March, 1909, as salesman for defendants under a contract entered into between them. Plaintiff also sought to recover a further sum under said contract, as alleged in his *second*cause of action of his complaint, for commissions on sales made for the defendants, *308in addition to his salary as aforesaid. An objection having been made by defendants, it was stipulated between the parties hereto that the court reserve its ruling thereon and decide the same as a question of law and, if the court should-hold that the plaintiff is entitled to such commissions, that the amount thereof be added to the verdict, rendered.

The agreement under which the plaintiff seeks to recover said commissions reads as follows:

“ New Yobk, *February*10, 1908.

“Agreement made 'and entered 'into this 10th day of February, 1908, between J. Hendelson & Bros, and' A. EE. Ettenson, of New York, for the term of one year, commencing April 1 and ending March 31, 1909. The said A. BE: Ettenson agrees to travel and sell the clothing line for said J. Hendelson & Bros., exclusive, in the territories as heretofore, also, in addition, to include part of the coast. The said J. Hendelson & Bros, agree to pay to said A. BE. Ettenson the sum of $1,800 for said term, payable in installments .of $150 at the end of each and every month during said term, starting April 1. The said J. Hendelson .& Bros, agree to allow A. BE. Ettenson traveling expenses not to exceed '$1,200. *The said J. Mendelson & Bros, agree to pay A. H. Ettenson a commission of five per cent in excess to*$40,000 *sales made by the said A. H. Ettenson and shipped by the said J. Mendelson & Bros.”*(The italics-are made by the court.)

The plaintiff contends that the clause of the agreement above'was to the effect that said plaintiff was entitled to receive a commission of five per cent.. in excess of his salary on all sales up to $40,000 made by him, and that, inasmuch as the total amount of sales made by the plaintiff (as was agreed upon the trial) was only equal to the sum of $29,760.56, he 'is, therefore, entitled to recover as his commission five per cent, thereon. It is always the duty of a court in construing a written instrument, if possible, to ascertain the intention of the parties; and, in order to determine its proper construction, resort must be had to the instrument as a whole,- and effect must be given to every *309clause and part thereof when it can be done without violence'; and, where the .intention of the parties to a written contract is intelligible upon the face of the instrument, extrinsic proof of its meaning’ is inadmissible and its construction is for the court alone. But, where 'the terms of a contract are so obscure or ambiguous as not to be understood without the aid of adventitious light, then evidence not only of the surrounding circumstances, but of the acts and conversations of the parties, is competent to illustrate their intention; and, upon such evidence, the meaning of the instrument is for the determination of a jury.

In examining the clause of the instrument in dispute, it must be read and understood according to the natural and obvious import of the language, without resorting to subtle and forced construction for either limiting or extending its purport. In addition to plaintiff’s salary and traveling-expenses, defendants agreed to pay to plaintiff *“*a commission of five per cent in *‘*excess to $40,000 s-ales made ’ by him.” By the words *“*in excess to $40,000 ” the intent is plain, clear from ambiguity and they are readily understood to mean *“*the amount by which one number, quantity or magnitude exceeds another.” Standard Diet. The word “ to ” is only an error- of grammar, as the intention of the parties is clear from the reading of the entire contract that, before plaintiff would be entitled to the five per cent, commission, the sales made by him were to exceed $40,000. If the plaintiff’s contention is the correct one, that “ in excess to $40,000 sales made ” is intended to specify the amount up to which commissions were to apply, then plaintiff would be reading into the contract what the parties never intended. The preposition “ to ” is synonymous with the preposition “ of,” so as to grammatically construe the sentence “ in excess of $40,000.” This is the only construction that could be made to fully convey the intention of the parties to this contract. The objection of the défendants must be sustained, to which the plaintiff may have an exception.

Judgment accordingly.