54 Wash. 209 | Wash. | 1909
Some time prior to the 11th day of April, 1905, the present plaintiff commenced an action against the defendant in the superior court of Stevens county, to recover a commission on the sale of real property. The complaint in that action alleged that, prior to the 10th day of January, 1905, the defendant was the owner of certain real property, therein described; that the plaintiff was a real es
“That at the time of contracting for the sale of the said ranch to the said Richart and at the time of the sale thereof, and for a long time prior thereto, the plaintiff, August Krug, had no agreement or understanding with the defendant for a commission as real estate agent or otherwise, if the said sale or any other sale of said property was made.
“That the plaintiff failed to prove by a preponderance of evidence that he acted as agent for the defendant in the contracting of the sale of and the sale of said ranch to the said Richart.
“That the plaintiff failed to prove by a preponderance of the evidence that there was existing between him and the defendant, a contract as alleged in the complaint or any contract at all for the sale of defendant’s ranch;”
and entered judgment dismissing the action. An appeal was prosecuted to this court where the judgment was affirmed. Krug v. Hendricks, 41 Wash. 410, 83 Pac. 417.
The appellant contends that the former action was brought on an express contract, and that the judgment of dismissal was no bar to a second action to recover for the same services on a quantum meruit. If it appeared that the former action Was dismissed on the sole ground that the appellant failed to prove the express contract as alleged, there might be some merit in this contention, but the findings and decision in the first action went far beyond this. The court found in effect that the appellant did not act as agent for the respondent in the sale of the property, and that there was no contract for a commission between the appellant and the respondent as alleged in the complaint or at all. • These findings were within the issues in the first action, and clearly barred a recovery under the allegations of either complaint. In fact both actions were brought upon express contracts, the former on an express promise to pay an agreed commission of five per cent on the selling price, the latter on an express promise to pay the reasonable value of the services. The second action was not based on an implied promise to pay the reasonable value of services performed at the instance and request of the respondent, for the complaint did not allege that the services were so performed. On the contrary, the appellant based his right of action on an express promise
The judgment of the court below is therefore affirmed.