Volume 6 — Terry

<p>Harrington, Chancellor, Richards, C. J., Terry, Carey, Layton, J. J., and Seitz, Vice Chancellor, sitting,</p>

<p>The contract is as follows:</p> <p>“In consideration of your efforts to procure a purchaser for the property described on the reverse hereof, the undersigned agrees to pay you a commission of 5% on the gross consideration for which the said property is sold or exchanged, by whomsoever such sale or exchange may be made or effected during the term of this Agreement or any extension thereof. Authority is hereby given you to act as Sole and Exclusive Agent to be Non-Revocable During a period of 3 months from the date hereof, and this Agreement shall continue in force thereafter until either party shall give to the other one month’s notice in writing of the cancellation therof, and the sole right and privilege is hereby given to Harry H. Rosin Co. to sell said property during the term of this Agreement or any extension thereof. Exclusive privilege is granted to place your sign on the property. The undersigned agrees to permit Harry H. Rosin Co., its agents or employees, and prospective purchasers to inspect said property at reasonable times during the term of this Agreement or any extension thereof.</p> <p>“If subsequent to the expiration of this agreement or any extension thereof or upon revocation of authority hereunder, the property shall be sold or exchanged to anyone with whom you or Harry H. Rosin Co., or its representatives have been negotiating, during the term of this Agreement or for 90 days thereafter, then said Commission will be paid nevertheless to Harry H. Rosin Co.</p> <p>“It is agreed that the commission will be earned if for any reason the owner withdraws the property from sale prior to the expiration of this contract, or if the owner refuses to sell to any purchaser whom the undersigned or Harr)r H. Rosin Co., its agents or employees may obtain under this contract.”</p> <p>After the execution of the agreement, Rosin put its sign upon the property, advertised it and showed it to one or more prospective clients. Thereafter defendants became dissatisfied, revoked the agency, and prior to the termination date of the contract sold it themselves by means of advertising in the newspapers. This suit is for commisions which, under the contract, it is claimed are due plaintiff regardless of who made the sale. Defendants denied liability upon several theories, the most important defense being that the contract gave an exclusive agency only and that they were free to make sale independently of the agent and without liability for commissions.</p> <p>At the trial we directed a verdict for defendant upon the theory that it was not clear from the terms of the instrument whether an exclusive agency or an exclusive right of sale was intended. Resolving the ambiguity against plaintiff, the drafter of the contract, we concluded that there was an exclusive agency only which left defendants free to make sale of their property free from liability to plaintiff for commissions. Plaintiff had filed a motion for new trial.</p>

<p>The complaint is as follows:</p> <p>“1. On January 27, 1949, the plaintiff was the owner of a building situated on the northeast corner of Twenty-third and Market Streets, Wilmington, Delaware. On that day, at about 8:45 P. M., the defendant Gladys L. Haley was operating an automobile in an easterly direction on Twenty-third Street approaching its intersection with Market Street, Wilmington, Delaware. At said intersection there is a traffic signal control light, having been installed by the Street and Sewer Department of the City of Wilmington, which was in operation at the time and place aforesaid. According to information and belief, the defendant Gladys L. Haley had a green light in her favor, and she thereupon proceeded to drive into the intersection. At the same time and place, a fire engine, owned by the defendant The Mayor and Council of the City of Wilmington and operated by its agent or servant, George P. Christy, was proceeding in a southerly direction on Market Street approaching its intersection with Twenty-third Street, aforesaid, on its return from a fire, there then and there being no emergency. Said traffic control signal at the intersection showed red for traffic proceeding south on Market Street, aforesaid. Noth witstanding said red traffic signal light, the defendant George P. Christy drove said fire engine, owned and operated as aforesaid, into the intersection and collided with the automobile operated by the defendant Gladys L. Haley, the latter vehicle thereafter jumping the curb and running into the building of the plaintiff, causing damage thereto in the sum of $349.01.</p> <p>“2. The defendants The Mayor and Council of the City of Wilmington and George P. Christy were negligent as follows:</p>