150 P. 306 | Nev. | 1915
By the Court,
This is an appeal from a judgment in favor of the respondents, following an order sustaining a motion for a nonsuit, and from an order denying a motion for a new trial.
Appellant, who was plaintiff in the trial court, brought suit against the respondents, Duborg, Ande,rson, and Skow, to recover judgment in the sum of $2,250. Omitting the formal portions of the amended complaint, it reads as follows:
" That prior to the 9th day of September, A. D. 1909, he performed services for defendants as their agent in procuring the sale of 500,000 shares of Philadelphia Western Mining stock, at their special instance and request; that on the 9th day of September, A. D. 1909, for and in consideration of plaintiff’s said services rendered as aforesaid, the defendants agreed in writing to pay to the plaintiff 10 per cent commission on all moneys received from the said sale of said stock as the same was received; that thereafter plaintiff and defendants entered into a further agreement by way of compromise as to the amount of said compensation, defendants thereby agreeing to pay plaintiff for his said services the sum of $3,000, and plaintiff agreed to take said sum in full compensation for his said services; that thereafter defendants paid plaintiff on said last-mentioned agreement the sum of $750, and no more, leaving a balance due and unpaid on said last-mentioned agreement of the sum of $2,250.”
From a careful reading of the amended complaint it will be seen that appellant bases his cause of action upon
The first question to be determined is: Did appellant procure the sale of the stock mentioned? If he did not, the question of the amount of the compensation agreed upon, if any, need not be considered.
At or about the time of the making of the option agreement with Scully a paper, of which the following is a copy, was executed by the respondents:
"Rock Creek Canyon, Sept. 9th, 1909. .
"For and in consideration of the services rendered as agent in the sale of 500,000 shares of Philadelphia Western Mining stock, we, the undersigned, hereby agree
" Henry Anderson,
"M. Skow.
The evidence on the part of appellant tended to show (and it is not disputed, as we understand it) that the services mentioned in the statement of September 9, just quoted, related to the option agreement between respondents and Scully of even date, that in the event Scully complied with the terms of his option, appellant would be paid. Thereafter a statement was signed by respondents, of which the following is a copy:
" Hilltop, Sept. 9th, 1909.
"We, the undersigned, owners of 500,000 shares of Philadelphia Western Mining stock, do hereby agree to to pay to H. C. Christensen ($3,000.00) three thousand dollars commission on the sale of said stock.
" [Signed] C. H. Duborg,
"Henry Anderson,
" M. Skow. ”
While appellant testified that he thought this statement was signed about two months after its date, he said it might have' been as late as March, 1910, that it was signed; the appellant dating it September 9, 1909, as he testified, to connect the transaction with the Scully option. Scully paid nothing upon the stock under the option agreement, which expired April 1, 1910.
Had all dealings between the respondents and Scully ceased upon the failure of Scully to comply with the terms of the option to purchase the stock mentioned, it is clear that the appellant would have no cause of action against respondents, for the reason that there was no sale. The so-called compromise was only a compromise of the amount, and it was to be paid only upon the actual consummation of the sale. We think the authorities are practically unanimous to the effect that before a broker
" A contract by a broker to find a purchaser for land is not performed, so as to entitle him to a commission, where he procures one who merely obtained an option on the land, and made no offer to purchase.” (Dinkelspiel v. Nason, 17 Cal. App. 595, 120 Pac. 790, citing authorities.)
See, also, 19 Cyc. 252; Aigler v. Carpenter Place Land Co., 51 Kan. 718, 33 Pac. 593; Keach v. Bunn, 116 Ill. App. 397; Lawrence v. Pederson, 34 Wash. 1, 74 Pac. 1011; Massie v. Chattom, 163 Cal. 772, 127 Pac. 56.
We do not think the court erred in sustaining the objection to this offer. It will be observed that the option agreement which appellant was instrumental in
Appellant brought his suit upon the theory that a sale had been made "prior to the 9th day of September, A. D. 1909,” and not upon the theory of having been the procuring cause of a trade between Scully and different parties from those who signed the statement of September 9, and upon an additional consideration moving to Scully; in fact, the evidence sought to be introduced would tend to prove an entirely different state of facts from those pleaded.
"It is a fundamental rule that judgment shall be secundum allegata et probata, and any departure from that rule is certain to produce surprise, confusion, and injustice. Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them; and if a party can allege one cause of action, and then recover upon another, his pleadings can serve no useful purpose, but will rather ensnaré and mislead his adversary.” (9 Cyc. 748.)
"There are cases which have proceeded in disregard of the pleadings and wherein the whole case' has been presented by both parties in their proofs without objection, in which an amendment has been allowed after the evidence was closed to conform the pleadings to the proofs. But, when objection is seasonably taken, or an exception presents the question, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings. The court will not ignore the whole office of a pleading and compel the parties to try their cases in the dark.” (9 Cyc. 750.)
See, also, 19 Cyc. 275.
" Q. At the time of the payment of the $750 to which you testified yesterday, did you have any conversation with Mr. Duborg and Mr. Anderson at that time? A. Yes.
"Q. Will you state what that conversation was? A. I told Mr. Anderson and Mr. Duborg that the $3,000 was due me, that they' had received their money to the amount of $1,000, * * * and that my money was due, this $3,000, and I had come down to get it.
"Q. What did they say? A. Mr. Anderson said that I was entitled to something, and they agreed to pay me $500 first; Mr. Duborg offered me $500 first; and I told Mr. Duborg it was not enough, that I had waited a long time for it, and I expected to get it all.
"Q. What did they say further, if anything? A. Mr. Anderson said they had concluded I was entitled to something, and they would pay me. Mr. Duborg said they would pay me $500.
"Q. What did you-say to that? A. I said it was not enough. I told them first that they had received their money, and Mr. Anderson said that they had a lot of money to pay out besides.
"Q. Did he mention in what way? A. He told me they had paid their attorneys $10,000, and they said they
The $750 which appellant testified he received was paid by a "company check”; and, assuming this payment to have been made by respondents Duborg and Anderson, it does not strengthen the case of appellant. The only inference deducible from the testimony relative to this payment is, we think, that Anderson and Duborg would not recognize a legal liability by virtue of the former contractual relations^ but that they considered appellant morally "entitled to something,” not because of the terms of the contract, but because his efforts were entitled to some consideration. As said in 80 Cyc. 1220: "Part payment will not change what was originally a mere moral obligation into a legal debt. ”
Perceiving no prejudicial error, it is ordered that the judgment appealed from be affirmed.