Simpson against Margitson and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 1847 |
| Date | 03 November 1847 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 383
QUEENS BENCH
S. C. 17 L. J. Q. B. 81; 12 Jur. 155. Discussed, Hutton v. Brown, 1881, 45 L. T. 343. Explained, Bruner v. Moore, [1904] 1 Ch. 310.
11Q.B.23. SIMPSON V. MAEGITSON 383 [23] simpson against margitson and others. Wednesday, November 3d, 1847. An auctioneer was employed to sell land, under a written contract, that he should be paid one per cent, commission, but, if the estate were not sold within two month* after the day of auction, only one half per cent. Held that this, by itself, meant " two lunar months," unless there was admissible evidence that the parties meant "calendar months." That the Judge might construe it to mean calendar months, if the context shewed this meaning. Or if this appeared to him, from the surrounding circumstances, at the time of making the contract. That, if there were evidence that the words were used in a sense peculiar to the trade, business or place, the jury upon this might find snch peculiar meaning. And that a jury may, in some instances, find the meaning of technical words. But that, here, the conduct or correspondence of the parties since the making of the contract was not evidence upon which, alone, a jury might find that the words denoted calendar months. [S. C. 17 L. J. Q. B. 81 ; 12 Jur. 155. Discussed, Button v. Brown, 1881, 45 L. T. 343. Explained, Bruner v. Moore, [1904] 1 Ch. 310.] Assumpsit for work and labour. Plea, except as to 2251. 5s., non assumpsit: and payment into Court of 2251. 5s. The particulars claimed 4251. 10s., being 251. for the expense of a surrey, and 4101. 10s. for commission on the sale of an estate. On the trial, before Wightman J., at the London sittings after Trinity term, 1846, it appeared that the defendants had employed the plaintiff, an auctioneer, to sell an estate, called the North Cove estate, by auction. The terms of his employment were the subject of a correspondence : but it was agreed that the contract was as proposed by the defendants in a letter to the plaintiff, dated 1st May 1845, which contained the following words. "The terms upon which the sale of the North Cove estate is offered to you are one per cent, upon the purchase money ; that to include every expense, and to be paid if sold by auction or within two months after; half per cent, if not sold at auction, or within two months after upon a reserve price." The estate was put up for auction on 9th August 1845; but was then brought in. Afterwards, on 2nd October 1845, the estate was sold by private contract for 40,0501. The counsel for the defendants objected that, as the sale, though within two calendar months from the day of auction, [24] was not within two lunar months, only half per cent, commission, 2001. 5s., besides the expense of the survey, was due. The plaintiff's counsel tendered the evidence of some auctioneers, to shew that, among land auctioneers, " month " was understood to mean " calendar month:" but this evidence upon being objected to, was withdrawn. The plaintiffs counsel then contended that it appeared from evidence produced with reference to another part of the case (namely, a correspondence which had taken place between the parties after the sale, and the contents of a bill of particulars which the defendants had approved of after the contract of commission and before the day of auction) that the parties understood " calendar months " to be meant. The counsel for the defendants contended that the written contract must be construed by the Judge; that the meaning of the word "month "was "lunar month;" and that this could not be altered by the evidence given. The learned Judge left to the jury to say which meaning the parties had; and they found that calendar months were meant. Hi Lordship then directed a verdict for the plaintiff, reserving leave to njove to enter a verdict for the defendants. In Michaelmas term, 1846, Watson obtained a rule nisi to enter a verdict for the defendants, or a nonsuit. Byles Sarjt...
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