148 P. 289 | Ariz. | 1915
Lead Opinion
This is an action for brokerage commissions. Appellee, as administrator, has been substituted for the plaintiff E. C. MeCamey, who has deceased since the appeal. The appellants A. H. and B. F. Gibson were the defendants. The cause of action is set forth in two counts — one on contract and one on quantum meruit. At the close of evidence on motion of defendants, the plaintiff elected to go to the jury on the count on contract. The contract, as pleaded, briefly is: That the plaintiff was a broker engaged in the business of buying and selling cattle; that defendants employed him on or about January 25, 1912, to sell their herd of cattle, consisting of about 10,000 head, located in Gila and adjoining counties, and agreed that, if he would find a purchaser, they would pay him as such broker, for his service, the sum of $1,000; that between January 25, 1912, and February 1, 1912, he did find a purchaser satisfactory to defendants, who contracted to buy
The answer consisted of a general denial and a plea setting forth facts of avoidance; the same being, in substance, as follows:
“And allege and charge that every act and thing done or performed by said plaintiff in connection or with reference to said sale was done and performed as the agent and employee of the buyers of said cattle, and in their interest, and that plaintiff was fully paid and compensated therefor by said buyers, and that, by reason thereof, it was not competent for said plaintiff to make with the defendants, the sellers of said cattle, any such contract as he has alleged, and that such a contract, if made, would be and is void as against public policy.”
The verdict of the jury was for the plaintiff for $1,000, the • amount sued for. Thereafter, and before judgment was entered, the defendants filed their motion for a new trial, asking the court “to vacate and set aside the verdict of the jury herein rendered and filed September 27, 1913, and to vacate and set aside any judgment that may have been or may be entered by the court upon such verdict. . . . ”
The motion for new trial was continued several times, when on October 18, 1913, it was overruled and judgment ordered in favor of plaintiff upon the verdict. The order further directed: “Such judgment shall appear prior to application for new trial and proceedings thereon.” The formal judgment signed by the presiding judge recites: “Judgment rendered this 27th day of October, A. D. 1913.”
Appellants assign nine errors. No. 1 complains of a ruling excluding certain testimony offered. Nos. 2 to 6 complain of instructions given. No. 7 asserts that the court committed error in commenting upon the testimony of A. H. Gibson in the presence of jury while he was on the stand testifying for defendants. No. 8 complains of the order overruling the motion for a new trial; and No. 9 alleges the insufficiency of the evidence to sustain the verdict.
The plaintiff appellee makes the point against the consideration of the two last assignments, that the motion for new trial was premature; and it will be our first duty to dispose of that contention.
“All motions for new trial, in arrest of judgment, or to set aside a judgment, shall be made within ten days after the rendition of judgment.”
The minute entries show that the motion for new trial was filed and denied by the court before and not after the rendition of judgment, and the motion itself shows that it was directed at the verdict and not the judgment. The statement in the minute entry that it should “appear” differently does not change the fact, but lends proof that no judgment had been rendered at the time the motion was overruled. And the record is not clear as to whether the judgment was actually rendered on October 18th or October 27th; the minute entry by the clerk giving the first date and the judgment as signed by the judge giving the last date. It is clear, however, that the motion for new trial was disposed of before any judgment was rendered or entered.
In Daggs v. Howard Sheep Co., 16 Ariz. 283, 145 Pac. 140, we had under consideration a motion for new trial filed too late; the law then being contained .in paragraph 1478 of the Revised Statutes of 1901. Paragraph 590, supra, is an amendment of paragraph 1478, but the question we are now considering is unaffected by the amendment. We decided in that case that “the terms of this law are mandatory and'must be obeyed by the court as well as by the parties,” citing several Arizona cases for the rule. The motion for new trial was not made at any time provided by law; that is, “after the rendition of judgment.” The limit of time for making the motion is as definite as language can make it. It must be made “after,” and, of course, “within ten days” of the rendition of judgment. A premature motion is therefore as ineffectual as one made too late. Mahoney v. Caperton, 15 Cal. 313; Dominguez v. Mascotti, 74 Cal. 269, 15 Pac. 773; Harris v. Careaga, 2 Cal. Unrep. 242, 2 Pac. 41; Fountain Water Co. v. Dougherty, 134 Cal. 376, 66 Pac. 316; St. Louis v. Boyce, 130 Mo. 572, 31 S. W. 594; 29 Cyc. 1040.
Under the provisions of paragraph 1231 of the Civil Code, the errors assigned (No. 8) to the overruling motion for new trial and (No. 9) to the insufficiency of the evidence to-sustain the verdict are not properly before us, as in law no mo
We now turn to the other assignments, taking them in their order.
Assignment No. 1 is that the court erred in excluding the testimony of Albert H. Gibson as to the manner in which plaintiff cut the cattle. The plaintiff had introduced evidence tending to prove his contract of employment as pleaded. The defendants at the time of the offer of the above evidence, under their general denial, were attempting to prove that the real contract between them and plaintiff was that plaintiff would act as the agent of the purchaser of the cattle in receiving and classifying them, and that he was to be paid the thousand dollars only on condition that “he would treat defendants’ right on the cut of the cattle,” as defendant Albert H. Gibson put it. Ben F. Gibson stated his understanding of the contract to be:
“If you will treat us right and will let us bring the cattle and put them in the corral, and then don’t cut anything in shipping condition, anything that would go under any kind of a contract, we would be willing to pay you something.”
J. N. Porter, who was present at the time of the making the contract, and who was interested as mortgagee of the cattle, gave his understanding of what was said:
“I said, ‘What do you want, Mac?’ And he said, ‘Well, T want a thousand dollars.’ ‘Well,’ I said, ‘if you are not too hard on cutting the cattle, possibly the boys can afford to give you something.’ ... I said, ‘If you will let the boys put the cattle in the corral and cut the cattle back and not be annoying them in gathering the cattle, it seems to me they ought to be able to pay you something. ’ From that they did agree, as I understood, to do it. He said he ought to have something to pay for helping to make the trade. He was to cut the cattle, and he would not be too hard on the boys in cutting them.”
• , The assignments 2 to 6, inclusive, are directed at five of the instructions given at the request of plaintiff. These in
The first criticism is made to apply to practically all the instructions objected to. The testimony on behalf of plaintiff shows that he not only “had some connection with the sale,” but that he was the procuring cause, and this is admitted by defendants in their testimony; their only contention being that he was paid by the purchasers, and was to be paid $1,000 by them on condition that he received, cut and classified the cattle in a manner not to their injury. The other two objections to the instruction are fully covered by other instructions. For instance, the instruction next preceding this one advised the jury that, before plaintiff could recover, they should find from a preponderance of the evidence that plaintiff was a commission broker buying and selling cattle on commission; that defendants solicited him to sell their herd of cattle, consisting of 8,000 or 9,000 head; that the plaintiff was the procuring cause of bringing the defendants and the purchasers together; that a sale was made; and that defendants had agreed to pay plaintiff the sum of $1,000 for bringing the purchasers and sellers together. This instruction was given in different form on request of defendants. The jury must have understood that, before plaintiff could recover, it was obligatory upon him to show that he rendered service under the contract pleaded, and was, in fact, the efficient, procuring cause of the sale, and we do not t.hi-nk
Assignments 5 arid 6 challenge the correctness of two instructions covering another phase of the case. They state the proposition of law that a broker may accept or recover compensation from both the seller and purchaser, when his only duty is to bring them together to fix their own terms and .they agree to it. ’ And this is followed up with a concrete application of the facts in the case with the burden placed on the plaintiff to show that his contract falls within the terms of the law as stated. The same instruction, in substance, was asked by defendants and given by the court, with the addition that in such case both the purchaser and seller must be made acquainted with and consent to his acting in such double employment or else any agreement to pay him would be void.
Another assignment (3) has reference to the following instruction :
“You are -instructed that if you believe from the evidence in this ease that the defendants agreed to pay the plaintiff E. C. McCamey the sum of $1,000 as compensation for bringing together and aiding in bringing together the defendants and Gordon, Ironsides & Fares Company in the purchase and sale of their herd of cattle about the time charged in the complaint, and that the defendants A. H. and B. F. Gibson agreed to pay the plaintiff McCamey the sum of $1,000 for the services so rendered, but that, in addition to the services so rendered, the plaintiff agreed that, if he should receive and classify the cattle, he would give the defendants and the purchasers both alike a square deal in so classifying and cutting the cattle, then you are instructed that the additional services so required would not affect the contract to pay him for his service; and if you so find that the only limitation placed upon the contract or the only thing to be done was that the plaintiff, if he classed the cattle and received them, for the purchaser, would do the fair thing and give each a fair deal, the sum (same) would not affect the contract so entered into; and, if you should so find from a preponderance of the evidence, the plaintiff would be entitled to recover, and you will so find.”
Several complaints are made of this instruction, only two of which we think deserve consideration, and they are that “it
It is admitted by all the witnesses who were present when the matter was discussed that the question of plaintiff’s compensation was first mentioned by plaintiff, and they also agree that his words were, in effect, that he thought he ought to have something for finding a buyer, and mentioned a thousand dollars. Both of the defendants and Porter say that their answer to his demand was, in effect, that, if he cut the cattle fair, they would pay him $1,000, and that he responded that he might not be sent by the purchasers to receive the cattle. No witness stated that he agreed to accept defendants’ proposition. This conversation took place at the same time and immediately after the price of cattle had been fixed by defendants, and before the plaintiff had submitted the proposition to the prospective buyers. Plaintiff had gone to Globe to see defendants in response to a letter from them offering to sell cattle. He had entered upon the service of procuring a buyer, and, before proceeding further, was interested in having his compensation fixed. In that view of the facts, the court might well have concluded that what the defendants now contend was the contract was only incidental and additional to the main contract. One of defendants’ instructions told the jury that “plaintiff is only entitled to recover upon proof by a preponderance of the evidence of such contract as he alleges, and would not be entitled to recover on an entirely different or collateral contract, even thougn such different and collateral contract may appear from the evidence before you and appear to have been related to or to
Two theories were submitted: One that the receiving of the cattle was an additional burden or condition that was imposed or attempted to be imposed upon the plaintiff by defendants before plaintiff was to be paid; and the other that there was a “different or collateral contract” growing out of the same transaction. The jury was told in varying form, several times, that plaintiff must recover, if at all, on the contract alleged, and that he could not recover if the proof showed a different contract.
The other instruction objected to is:
“You are instructed that an agreement will be enforced even if it is incidentally or indirectly connected with an illegal transaction, provided it is supported by an independent consideration. ’ ’
Like the other instructions that we have considered, it is not contended that this one does not state a correct proposition of law; the contention being that it is abstract, confusing and misleading.
As we have before observed, if the plaintiff had acceded to defendants’ proposition, assuming its purpose was to secure to themselves some advantage over the purchasers of their cattle in classification, and that that was the consideration for defendants’ promise to pay, the transaction would have been illegal; 'but if, as a matter of fact, the promise to pay was in consideration of the plaintiff’s finding a purchaser of the cattle, and the agreement as to receiving and classifying the cattle was only incidental or additional, even though it might smell bad, it would not defeat a recovery. If, in fact, and that under the instructions was for the jury to determine, the understanding between the parties was that the plaintiff should be paid for finding the buyers and not for favors extended the sellers in the receiving and classifying the cattle, the plaintiff would bé entitled to compensation, for the latter suggestion, even if acceded to, would have been without any legal consideration, whereas the former would have been founded upon a legal and valuable consideration.
“Answer the question just as readily as you can, Mr. Witness. There is no use arguing over a substitute. If you know, answer. If you don’t know, answer.”
Other questions were asked with interruptions and arguments of counsel, when the following took place, and of which complaint is made:
“Q. And Mr. Porter said if you favor the boys a little I think they ought to give you something, did he? A. If— Q. Just answer that.
“Attorney for Defendants: I submit that the witness ought to be permitted to answer the questions without being interrupted.
“The Court: The trouble is the witness apparently is not capable of expressing himself directly.
“Attorney for Defendants: As I have stated, the witness has an impediment in his speech at times.
“The Court: It does not seem to be due so much to an impediment as it seems simply a means of evading a direct answer. . . .
“Q. It is a fact that you and your brother said to McCamey, in answer to his question to you and your brother, ‘What am I to get out of this if you should close this deal?’ .‘If you favor us some in the way of cutting and grading we will pay you a thousand dollars ? ’ A. Yes, we told him that. Q. You told him that, didn’t you? A. Yes, we told him we would
“The Court: Answer the question, Mr. Witness.
“Attorney for Plaintiff: Mr. Gibson, are you afraid to answer that question because you are afraid it will hurt your case?
“Attorney for Defendants: I submit that is unfair.
“The Court: It is not for him.”
We think the language used by the court had better not been said, but we cannot say that the witness’ hesitant and halting manner did not justify it. He was testifying in his own behalf, and his own interest demanded, to the questions put, frank and ready answers. It is true his attorney told the court that he “had an impediment in his speech sometimes,” but the court was of a different opinion formed from observing the witness,- and, while we think his rebuke should have been more cautious and guarded, we cannot say that it was not justified. If such comment had been directed at a witness testifying in behalf of defendants, over whom defendants had no control, the situation would be different and might call for a different ruling, but here the defendant’s own conduct provoked from the court the statements criticised.
The defendants argue this point with great earnestness, ability and zeal and refer us to many court decisions which apparently demand or would justify a reversal of this case, but in all the eases the consideration that prompts the court to reverse is not error simply, but prejudicial error. If, notwithstanding error may have been committed by the court’s comment, it still appears from the whole record that no other verdict than the one found would have resulted in the absence of such comment, it is our duty to affirm the judgment.
That the defendants had agreed to give plaintiff $1,000 was not a contested question. The only question was as to the consideration for the promise. Was it for effecting a sale of defendants’ cattle, or something else? Regardless of the comment -of the court on Albert H. Gibson’s testimony or conduct, it seems to us the verdict must have been,-under the whole evidence, in favor of plaintiff.
Judgment is accordingly affirmed.
FRANKLIN, J., concurs.
Concurrence Opinion
Specially Concurring. — The appellant prematurely filed a motion for a new trial. Because the motion was filed at that stage of the proceedings (that is, before a judgment was rendered in the ease upon which to operate), the motion was ineffective to call forth the jurisdiction of the court to determine the questions triable upon the hearing of a motion for a new trial. Until judgment was rendered, the parties could not anticipate what that judgment would be, but they must presume that the law would dictate a proper judgment. Until an improper or erroneous judgment was rendered, no grounds for a motion for a new trial existed. Therefore a motion for a new trial, made before judgment rendered, had nothing upon which to operate, and was ineffective for any purpose.
The scope of the review by this court extended to and was limited by the judgment-roll. I do not concur in the apparent holding of the majority opinion, to the effect that under paragraph 1231 of the Civil Code of 1913, this court is required or empowered to review all matters transpiring at the trial when such matters have been assigned as error. Paragraph 1231, supra, is as follows:
“Upon appeal from a final judgment the court shall review all orders and rulings made by the court below, which are assigned as error, whether a motion for a new trial is made or not. If a motion for a new trial is made and denied, the court may, on appeal from the final judgment, review the action of the court below in denying the motion, though no appeal be taken from the order denying the motion for a new trial: Provided, that on appeal from a final judgment the supreme court shall not consider the sufficiency of the evidence to sustain a verdict or judgment in an action tried before a jury unless a motion for a new trial shall have been made.”
If, as clearly indicated by the statute, the court may review the order of the lower court refusing a new trial only when a motion for a new trial has been made and denied, then it follows that, when no motion for a new trial was made, the court has no. power to review the grounds for a new trial.
The matters of admission and rejection of evidence and the giving and refusal of instructions, and the conduct of the judge of the court upon the trial, are assignable as grounds for a new trial, and properly reviewable by the trial court
For the reason no reversible error appears upon the judgment-roll, I concur in the order affirming the judgment.