141 P. 33 | Cal. Ct. App. | 1914
This action is prosecuted by the plaintiff, a real estate agent, to recover commissions from the defendants, who also are real estate agents. The claim is based upon an alleged contract for services rendered by the plaintiff in connection with sales of land belonging to a certain *272 corporation. Judgment was rendered in favor of the plaintiff, and defendants appeal from an order denying their motion for a new trial.
The lands that were sold are in Mexico. The defendants had their principal place of business in San Fransciso, and the plaintiff was located in the county of Santa Clara. The defendants being the authorized agents for the sale of said lands, delivered to plaintiff a letter dated October 22, 1908, in which they agreed to pay plaintiff "a commission of 5% on all the land we sell through your assistance, whether they are closed directly or indirectly by you." Defendants also delivered to plaintiff a letter, dated November 5, 1908, in which they said: "If you desire to operate in San Luis Obispo and Monterey counties, in the sale of the Yaqui Valley lands controlled by us, we will pay you a commission of $6 per hectare on all land sold by you, commission payable to you as and when received by us. All sales to be made through this office and subject to our approval. We will furnish you printed matter, such as we have, and will assist you in every way possible. It is understood, however, that you are to pay your own expenses such as office, advertising, commissions to sub-agents, etc." Of the sums included in the judgment in this action, one hundred and sixty dollars was allowed as a commission to plaintiff under the five per cent agreement for land sold to G. B. Seely of Santa Clara County. The remainder of the judgment is on account of lands sold to James Martin, D. McFadden, W. H. Martin, and H. Bardin, severally, who were residents of Monterey County.
Among the grounds asserted in support of the motion for a new trial, appellants specify that the evidence is insufficient to support the court's findings wherein it was determined that the defendants employed plaintiff and agreed with him for commissions as alleged in the complaint, and was further determined that pursuant to said agreement plaintiff procured purchasers for portions of said lands, as alleged in the complaint and set forth in the findings of fact. Appellants' first point in the argument is that the writings offered in evidence are insufficient to constitute a contract within the meaning of subdivision 6 of section
It is next contended that plaintiff did not render the services necessary to entitle him to commissions under the agreement as made. Various decisions are cited to show that before plaintiff could recover herein, he must prove that he alone was the efficient or procuring cause of the sales. Appellants rely upon Armstrong v. Wann,
Finally, it is claimed on behalf of appellants that they should have a new trial on account of surprise which ordinary prudence could not have guarded against, and on account of irregularities in the orders of the court by which defendants were prevented from having a fair trial. With respect to these grounds of the motion, an affidavit was filed setting forth a part of the record, and it is claimed that by reason of the facts therein stated the defendants were prevented from presenting evidence material to their case. The defendant Garrett was on the witness stand and was giving testimony as to what happened while the parties were in Mexico, and it is claimed that defendants were proceeding to show by him that the sales were made by him and not by plaintiff and that plaintiff was not the inducing cause thereof. The judge presiding at the trial suggested that his opinion at that time was that, unless the influence which induced the purchasers to go down to the Yaqui Valley originated in Monterey County, then he must take the testimony of the purchasers, whose depositions were on file, rather than that of the real estate men. "Unless plaintiff was instrumental in causing those people to leave Monterey County and go there, why he stands on very dangerous grounds, so far as his operations were concerned. I will give that very little consideration in the final judgment in the case." . . . "I think we can shorten it up. I don't think there is any material dispute as to the transactions down there. If there was it would amount to nothing. Whether the plaintiff was there, or Mr. Garrett was there at the time that the agreement or bargain was struck, that don't make any difference, as long as they were acting in concert." After some further discussion, counsel for defendants desisted from offering further testimony of the witness with regard to the transactions in Mexico. No definite offer of testimony was made, or ruling thereon demanded of the court, more than the explanation of counsel that he was endeavoring to discover to the court what was the inducement or incentive to the parties to purchase this property, and that in offering the testimony he was dealing with motive or producing cause with respect to those sales, and proposing to show that nothing was done *277 down there by Mr. Hageman to produce a new incentive or inducing cause to the making of those sales. It is now claimed that the defendants were misled by these interruptions and suggestions of the court and that this is shown by the fact that the judge stated that he gave judgment in favor of the plaintiff upon the ground, among others, that "defendant Garrett's conduct and acts alone from the time he met the parties in Mexico until the last sale was made to W. H. Bardin in Salinas would justify the court in rendering judgment in favor of plaintiff." This statement by the judge is not found in the findings of fact and must have been merely a part of the opinion or statement by the judge in announcing what his decision would be. Even if, in passing upon the question of error in denying the motion for a new trial, we could consider the opinion or statement thus made by the judge, it would not alone be sufficient to show that defendants were prevented from having a fair trial. This question must be determined from the record of proceedings at the trial taken in connection with the findings of fact. This record, the essential part of which we have stated, does not support the claim of appellants respecting this matter. The mere fact that the judge presiding at a trial gives out some expression of opinion for the guidance of counsel during the progress of the case and suggests the shortening or condensing of the testimony to be given, does not constitute a denial of the right to offer evidence and is not error. In the absence of a contrary showing, it must be presumed that the court would not have denied the right of the party to produce in evidence any fact material to the case. Furthermore, we are not convinced that the suggestions made by the judge were out of place under the circumstances then appearing.
The order denying the motion of defendants for a new trial is affirmed.
James, J., and Shaw, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on April 30, 1914, and a petition to have the cause heard in the supreme court after judgment in the district court of appeal, was denied by the supreme court on June 2, 1914. *278