74 Wash. 631 | Wash. | 1913
— This action was commenced by the plaintiff in May, 1909, to recover a commission on the sale of certain shares of stock owned by John W. Edgecomb and wife and W. A. McDonald and wife in the Riverside Timber Company, a corporation. Plaintiff alleged that, in November, 1908, the owners of the stock agreed to pay him a commission of three per cent upon the selling price for his services in finding a purchaser; that he found a purchaser and that a sale was made by the owners sometime in January, 1909, for the sum of $235,000; that the amount of his commission was $7,050; that all the agreements in relation thereto were oral.
The cause came on for trial before a special judge pro tempore without a jury. After the plaintiff’s evidence was submitted, the defendant moved the court for a nonsuit, upon the grounds that the evidence showed no liability against the defendant, that there was no contract entered into between the plaintiff and the defendant, and that the plaintiff had failed to support his cause of action as alleged, in the complaint. The trial court sustained this motion, and dismissed the action. The plaintiff has appealed.
At- the close of the appellant’s evidence, he called as a witness Mr. Louis Schwager, one of the principal stockholders in the defendant corporation. He testified, in substance, that the Schwager & Nettleton corporation did not purchase the stock of the Riverside Timber Company, but that he and Mr. Nettleton and one or two. others purchased the stock individually; that the Schwager & Nettleton corporation was not interested in the purchase. Appellant thereupon asked for a continuance of the cause until proofs could be obtained to contradict the witness. This request was denied. After a judgment -of nonsuit had been entered, appellant filed a motion for a new trial upon the ground of surprise, claiming, in sub
Appellant argues that the court erred in denying the motion for a continuance and in denying the motion for new trial. The answer of the respondent to the complaint was a general denial, so that the appellant was put upon his proof as to all the facts alleged in the complaint. It was necessary for the appellant to prove that the corporation of Schwager & Nettleton had assumed the obligation to pay the commission upon the sale of the stock. A party is not entitled to a new trial simply because he was surprised by testimony falling within the issues of the case; and especially where, as here, the appellant calls one of the opposing parties to prove his case. He must not be surprised when the opposite party testifies substantially as he has pleaded.
“Ordinarily, the pleadings must determine what issues will be tried; and it has never seemed to be the practice that a party must disclose to his adversary what his testimony will be, or that he must suggest testimony for his adversary.” McDougall v. Walling, 21 Wash. 478, 58 Pac. 669, 75 Am. St. 849.
This court has several times held that, where the only purpose of newly discovered evidence is to impeach or discredit evidence produced at the trial, a new trial will be denied. Scandinavian American State Bank v. Downs, 72 Wash. 79, 129 Pac. 894; Seattle Lumber Co. v. Sweeney, 43 Wash. 1, 85 Pac. 677; Harvey v. Ivory, 35 Wash. 397, 77 Pac. 725. We are satisfied, therefore, that the trial court did not err in refusing to grant the motion for continuance, nor in denying the motion for new trial.
The appellant argues at some length that, upon the whole case, the trial court should have denied the motion for nonsuit,
The record in this case shows that, if there was any liability for the commission, it was against Mr. Edgecomb and Mr. McDonald, who had agreed to pay the commission to the appellant. We find no evidence whatever that the appellant ever released Edgecomb and McDonald; or that the respondent in this case or Schwager and Nettleton personally ever agreed to pay the commission. It is true that, when the contract was finally closed between Edgecomb and McDonald on the one side, and Schwager and Nettleton and others on the other, an option was given by Mr. Edgecomb, in consideration of one dollar, to Schwager and Nettleton to purchase all the stock which Edgecomb owned in the Riverside Timber Company at fifty cents on the dollar, net, “any commission to Orr to be paid by you.” But the evidence of Mr. Edge-comb, called as a witness by the appellant, shows that at that time he stated to Mr. Schwager that Mr. Orr was entitled to no commission because his commission depended upon a sale at a price in excess of fifty cents net. We are satisfied, therefore, that upon all the evidence the court properly directed a judgment of nonsuit.
There are other questions referred to in the briefs which we think require no further notice.
The judgment of the trial court is therefore affirmed.
Parker, Gose, and Chadwick, JJ., concur.