108 P. 253 | Ariz. | 1910
This was an action commenced by the plaintiff and appellee, D. J. Brislin, against the defendant and appellant, Felix Mayhew, to recover for services rendered by the plaintiff as middleman in effecting an optional contract of sale of certain mining properties in Yuma county, Arizona. A verdict in the sum of $2,000 was rendered against the defendant, upon which verdict judgment was duly entered. A motion for new trial was made, which was denied, and thereupon this appeal was taken.
The first and second assignments of error criticise the following rulings of the trial court:“ Q. Now, Mr. Brislin, . . . what did you understand by his (the defendant’s) remark to you at that time and place as you have testified to ‘that he would make it all right with you’? (The defendant objects to the question as irrelevant and immaterial.) The Court: I think it would be competent for the witness to state what he
The third assignment of error is as to the ruling of the trial court admitting in evidence the complaint, together with the contracts annexed thereto. It is argued by appellant that the plaintiff had fulfilled his contract of employment prior to the making of said contracts and that they were incompetent and immaterial. The complaint alleges that the contract of em
The fourth assignment of error relates to alleged error in admitting evidence that certain amounts of money had been paid on the purchase price of the mining claims subsequent to the giving of the option and to the commencement of the action. The rulings of the trial court upon the admission of the evidence complained of were made while the plaintiff was on his main case. The complaint, in addition to the contract of employment and the various optional contracts hereinabove referred to, alleged that under the said contracts the purchasers had paid $227,500 upon the purchase price of $300,000, and were able, ready, and willing to pay the remainder as the same became due, and that the full purchase price would be paid in accordance with .the contract. The only direct evidence as to the contract of employment was that of the plaintiff, who stated “that he was to get the usual commission on the purchase price of the property; that his understanding was that, if the deal fell through, he was not expecting anything.” Without regard to the doctrine of multiple admissibility, which might be determinative of the question, we will consider the evidence as bearing, not upon the right of the plaintiff and appellee to compensation, but as tending to afford a basis for determining the amount of the compensation. This latter is the ground of objection argued by the appellant, who contends that the contract was fully performed when the appellee had brought the parties together, and they
No authority is cited by appellant holding the evidence inadmissible of which complaint is here made. We find no authority directly in point as to middlemen. The reasoning adopted in the more usual cases of the real estate broker is applicable. His contract is completed, and he is entitled to compensation, even though he be employed for the purposes of sale, when he has introduced a purchaser and his principal chooses to waive that requirement, and enters into an optional contract. The broker in such case is permitted to show that subsequent thereto the option has been exercised, and the courts allow him compensation upon the basis of the amount paid thereon. Gilder v. Davis, 137 N. Y. 504, 33 N. E. 599, 20 L. R. A. 398. “The compensation to be made in such cases is by the ordinary judgment of business men measured by the results attained. It is not limited by the time occupied or the labor bestowed.” Forsyth v. Doolittle, 120 U. S. 73-78, 7 Sup. Ct. 408, 30 L. Ed. 586; Boardman v. Hanks (1904), 185 Mass. 555, 70 N. E. 1012; Blake v. Stump, 73 Md. 160, 20 Atl. 788, 10 L. R. A. 103. There was no error in the rulings of the trial court in admitting the evidence complained of in this assignment.
The fifth assignment of error is not argued in appellant’s brief, and we therefore give it no consideration. Bail v. Hartman, 9 Ariz. 321, 83 Pac. 358.
The sixth assignment of error relates to alleged error in the sustaining of an objection to a hypothetical question upon cross-examination addressed to a witness who had testified as to the value of the services rendered by appellee. The ruling was based upon the ground that there was no testimony tending to support the facts assumed in the question. There is a suggestion in the brief of appellants that the latitude allowed in the cross-examination of an expert witness should have permitted an answer because it would bear upon the witness’ qualification to testify. This point is not seriously urged, and
Assignments of error Nos. 7 to 13, inclusive, relate to the giving and refusing of instructions to the jury. The record discloses that the motion for new trial fails to allege error in the giving or the refusing of instructions. We therefore cannot consider these assignments. Pickthall v. Steinfeld, 12 Ariz. 230, 100 Pac. 779; Steinfeld v. Pickthall, 12 Ariz. 230, 100 Pac. 779; Pringle v. King, 9 Ariz. 76, 78 Pac. 367.
The fourteenth and fifteenth assignments of error relate to error in the overruling of motion for new trial, and raise questions already considered and disposed of under the other assignments of error.
Assignments 16 and 17 allege error in overruling the defendant’s motion for new trial upon the grounds that the evidence does not sustain the verdict, and that the evidence does not sustain the judgment. We have examined the record, and find that there is some evidence in support of every allegation of the complaint essential to the verdict and judgment. This court will not grant a new trial upon the grounds alleged where there is any substantial evidence in the record to support the verdict and judgment. Goldman v. Sotelo, 7 Ariz. 23, 60 Pac. 696; United States v. Copper Queen M. Co., 7 Ariz. 80, 60 Pac. 885; Maricopa etc. Ry. Co. v. Dean, 7 Ariz. 104, 60 Pac. 871; Old Dominion etc. Co. v. Andrews, 6 Ariz. 205, 56 Pac. 969; McGowan v. Sullivan, 5 Ariz. 334, 52 Pac. 986; United States v. Chung Sing, 4 Ariz. 217, 36 Pac. 205; Miller v. Green, 3 Ariz. 205, 73 Pac. 399; Barter v. County of Pima,
The judgment of the trial court is affirmed.
CAMPBELL and DOE, JJ., concur; DOAN, J., not sitting