
    Louis N. Thomas, Respondent, v. Howard A. Vidal, Appellant.
    Fourth Department,
    November 12, 1930.
    
      Hubert C. Minard [James 0. Moore of counsel], for the appellant.
    
      Daeisch, Paul & Lesswing [Worthy B. Paul of counsel for the respondent.
   Per Curiam.

The controversy relates to the construction of the following quoted paragraph in a contract between the defendant, a general agent of a life insurance company, and the plaintiff, an agent of the defendant in respect to the insurance business: “ In event of the termination of this contract for any other cause than fraud, malfeasance, misappropriation or withholding of funds, or wilful or perverse negligence on the part of the Agent, after two years of continuous service, then the renewal commissions as herein provided shall continue to be paid to the Agent or his legal representative for the same period as if this contract had been continued in force, subject to a deduction of Two per cent (2%) per annum for collection.”

Plaintiff claims that the two per cent deduction for collection was to be two per cent of the commissions themselves. The judgment appealed from sustains this construction. We, however, read the clause to mean “ subject to a deduction of two per cent of the premiums for collection of the premiums.” This construction recognizes that the commissions are based upon the premiums collected, that collection of premiums was by the express terms of the contract within the scope of the plaintiff’s employment, that the premiums are the only moneys collected by the general agent or the company, the only moneys which can be fairly considered to be the subject of collection, and that as the deduction is based upon the collection of premiums, the computation of the deduction must also be based on the amount of premiums collected. The practical result so obtained is in consonance with what we conceive to be the natural contract under such circumstances and is in accord with the practical construction of which there is evidence.

The judgment should be reversed on the law and the facts, with costs, and the complaint dismissed, with costs. Certain findings and conclusions disapproved and reversed and new findings and conclusions made.

All concur, except Crouch and Thompson, JJ., who dissent and vote for affirmance. Present — Sears, P. J., Crouch, Tatlor, Edgcomb and Thompson, JJ.

Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.  