Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1909-01-25
kENNEBEc REscRiPT.
New Trial Ordered In Case Of Strout
VS.. Gay.


The following rescript from the law
court has been received by Clerk of
Courts c. W. Jones, granting a new trial
in the Kennebec county case of Strout
VS.. Gay, which went up on defendants
exceptions:
E. A. Strout Company VS.. Daisy E. Gay.
Rescript, Spear, ].
This is an action of assumpsit by E. A.
Strout Company VS.. Daisy E. Gay, upon
the following count in the plintiff's writ:
For that the said defendant by her con-
tract by her signed at Pennington,
Maine, on the 2lst day of October, 1895,
in consideration of the listing by one +.
A. Strout of New York City, state of
New York, of certain property of the de-
PENDANT, then and there promised" etc.
The amount claimed was $50 The con-
tract was properly signed by E. A
Strout to Z. A. Strout Company.
The plaintiff does not deny that she
the agency Thereupon the plaintiff
claimed it was entitled to $50, or l per
cent of the asking price. The only
ground upon which the defendant agreed
to pay this commission was in considera-
ton of the defendant having listed the
property. 1t was therefore incumbent
upon the defendant 10 prove that it had
done this 1t will be observed from read.
ing the contract that listing was the only
thing the defendant undertook to do.
Other than this the contract was abso-
lutely one-sided. The evidence upon
which it seeks to establish performance
of it's part is found in a single question
and answer. @. And leaving the descrip-
ton and making the contract consti-
tutes listing, does it? A. Yes, sir.
The real question at issue is the mean
ing of the word 'listed'' as used in the
contract The court lis of the opinion
that it is more comprehensive than the
plaintiff contends. I'm constituting
written contract the words used are to
be taken in the ordinary and popular
sense unless from the context it appears
to have been the intention of the par
ties that they should be understood in
different sense r. S. Oh. l, Sec. 6, Par. 1;
Halves ct al. vs. Smith, u Maine, 429;
Cyc. 8, S7S.
The Century dictionary defined list: ito
put into a list, or catalogue; register
enroll" This is the common and ordin-
~ sense in which the word is used, and
the one in which the defendant undoubt-
edly understood it, and had right to SO
construe it's meaning. We are unable to
surmise how the plaintiff could conceive
that, in the mind of the defendant, the
word meant less. 1t must be held that
the plaintiff had reason to know that
the defendant would interpret the word,
as calculated to require something more
Of
property which she had right to sup
pose the plaintiff intended to make an
effort to sell.
In Halves ct al. VS.. Smith, II Maine
1923, the court says: Nothing can be
more equitable than that the situation
of the parties, the subject matter of their
transaction and the whole language of
their instruments should have operation
in settling the legal effect of their con-
tract; but it would be a disgrace to any
system of jurisprudence to permit one
party to catch another, contrary to the
spirit of their contract by form of
words, which perhaps neither party I'M
derstood." In view of this rule, it seems
incredible, under the circumstances of
this case, that either party to this con-
tract should have understood the word
list to mean the mere filing of an in
ventory of the property to be sold with
the agency of the plaintiff In view of
the surrounding circumstances and the
purposes of the contract we are of opin-
ion that the most restricted construction
of the word list would at least convey
meaning as broad as the definition
above quoted from the Century Diction-
airy; that is, to catalogue, register, or en-
roll, so that some mention of the prop
erty would appear in some of its pam
phlets advertising property for sale.
The plaintiffs own evidence shows that
it did not comply with the terms of its
contract as herein interpreted by the
court 1t failed to list the property as
the contract required. AS the verdict
was against the law and the evidence,
the exceptions need not be considered.
Motion sustained.
New trial granted.