268 N.W. 53 | Iowa | 1936
[1] Appellant's first complaint is lodged against the action of the trial court in overruling its motion to direct a verdict, based on the ground that the evidence failed to show that the plaintiff was the inducing cause or procuring cause resulting in the leasing of the premises, that the prospective lessee produced by plaintiff was a certain person by the name of Elman, whereas the premises were leased to "Roosevelt Theater Corporation," and that this brings the case within the rule announced in Murray v. Keenan,
[2] Appellant also assigns as error the refusal of the court *1189 to permit a witness on cross-examination to relate the whole of a conversation, a part of which had been given in evidence by the witness on direct examination, citing Section 11272 of the Code of 1935, which provides:
"When part of an act, declaration, conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other. * * *"
The testimony related to a conversation had between Sam Elman, plaintiff's witness, and one Freeman, to the effect that Elman had told Freeman that appellant was not very much interested in Elman, and requested Freeman to intercede in his behalf. On cross-examination, the court refused to allow the witness to testify as to what he told Freeman concerning appellant's refusal to lease the premises to Elman. In this we are inclined to the belief that the court was in error. However, it is plainly evident that it resulted in no prejudice to the defendant for the same matter was gone into and fully covered by other witnesses. Furthermore, regardless of what was said in reference to this subject, the premises were in fact leased to Elman, Elman himself personally putting up the money to guarantee that the equipment placed in the building would be paid for.
[3] The third error complained of relates to the exclusion of the testimony as to what real estate brokers' compensation was generally when they worked by the day. The objection was to the effect that there had been no contract of employment to work by the day and no showing that the customary manner of hiring real estate brokers was on a per diem basis, and therefore the testimony sought to be elicited was incompetent and immaterial. The question asked was in the following form:
"Q. Did real estate agents sometime here in Des Moines perform real estate services by the day?" This was objected to and objection sustained. "Q. And do you know what a fair and reasonable and the usual value of charges were for their services per day?" Objection to this was likewise sustained.
We think the objection was properly sustained. The question to be determined by the jury was the value of the services rendered by the plaintiff in this case based on quantum meruit. The question to be competent must relate to the fair and reasonable *1190 value of the services rendered by the plaintiff in the case on trial. The fair inference to be drawn from all the testimony is that the ordinary, usual and customary method of employment was on a commission basis.
[4] The fourth and final error assigned is based on the overruling of the 11th ground of appellant's motion for a directed verdict, which was as follows:
"11. That the pleadings and proof failed to allege or show that plaintiff was a duly licensed broker or salesman at the time the alleged cause of action arose," citing Section 1905-c44, Codes 1931, 1935, which recite:
"No person, copartnership or corporation engaged in the business or acting in the capacity of a real estate broker or a real estate salesman within this state shall bring or maintain any action in the courts of this state for the collection of compensation for any services performed as a real estate broker or salesman without alleging and proving that such person, copartnership or corporation was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose."
There is no allegation in the petition that the plaintiff was a duly licensed real estate broker. The proof, however, which went in without objection was ample and conclusive that the plaintiff and its employees were all duly licensed in compliance with the statute. There was no attack upon the pleadings and no objection whatever to the testimony. The issue was voluntarily tendered by the evidence and was in no way refuted and was conclusively established. The question was in no way raised except by motion to direct verdict. The rule is recognized in this state that the parties may voluntarily present issues under the evidence, even though the pleadings present no such issues. Des Moines A.P. Company v. Lincoln Place Co.,
The case was properly submitted to the jury, which returned a verdict in favor of the plaintiff. There being no reversible error, the case must be and is affirmed. — Affirmed.
DONEGAN, C.J., and PARSONS, ANDERSON, MITCHELL, STIGER, and KINTZINGER, JJ., concur.