204 P. 881 | Nev. | 1922
Lead Opinion
By the Court,
This action was instituted by appellant to recover a judgment for commissions alleged to have been earned as a broker in procuring a purchaser for certain mining property situated near Mill City in Pershing County. The complaint contains two counts, one upon a contract and the other upon a quantum meruit for the value of services rendered.
Appellant contends that respondent represented that he was the owner of or controlled a group of mining claims near Mill City, Pershing County, Nevada, which he was desirous of selling, and that it was agreed between them that plaintiff should use his best endeavors to procure a purchaser therefor, and that in the event of his success the defendant would pay plaintiff a commission of 10 per cent upon the selling price; that plaintiff thereafter found a purchaser for said property, for the sum of $125,000; and that one Farreta, one of the defendant’s coowners in the property, settled with the plaintiff by giving him a note for
Several grounds were assigned in support of the motion for a new trial, but the court based its order upon two grounds only: First, for error in admitting in evidence the note executed by Farreta; and, second, because a letter written by Farreta, though not in evidence, was through mistake handed to the jury with exhibits in the case.
We think the court erred in granting the motion for a new trial, and in disposing of this matter we will first consider the position taken by the court wherein it held that error was committed in admitting in evidence the note executed by Farreta in payment for his share of the commission alleged to have been earned by the plaintiff as being the procuring cause of the sale. The evidence shows that the plaintiff was a man who had been engaged in mining for about thirty-seven years, and who had been instrumental in selling several mines; thát in the fall of 1917 he was induced by a daughter residing near Mill City to go there that he might .become acquainted with the mineral resources of the section, with a view of making a sale of some of the properties there located; that he was put in charge of the work carried on by the defendant upon his property, and near the first of 1918, being threatened with pleurisy, decided to go t'o his home in. San Francisco until his health should be restored; and that the defendant took him from the mines to the railroad station at Imlay. The plaintiff testified that on the way to Imlay he broached to the defendant the subject of selling the property in question, and that the defendant then told him that he controlled the property, though there were some small
The undisputed evidence shows that in the latter part of January or early, in February after plaintiff had recovered sufficiently to enable him to leave the house, be saw Mr. E. S. Shanklin, a mining engineer, whose assistance he solicited in finding a purchaser for the property, after which he returned to the property; that Mr. Shanklin agreed to assist in finding a purchaser, and pursuant thereto interviewed Mr. Wm. J. Loring, a mining man of San Francisco, and acquainted him with the Sutton property; that as a consequence of investigations and negotiations with Mr. Loring he (Shanklin) made a trip to inspect the Mill City property, and immediately tied up several properties (not including the Sutton property), and telegraphed and wrote Loring to come up and inspect the .country; that Loring arrived at the Sutton property about March 5, and in company with plaintiff, Shanklin, and others, spent two or three days in looking over it and other properties; that on March 19, 1918, Loring wrote a letter to Shanklin, wherein he outlined a plan of organizing a company to take over various mining properties at Mill City, and specifically alluded to the “Sutton group,” the property which it is alleged plaintiff was instrumental in selling. After Loring had inspected the properties, he went to Lovelock, where he met the defendant. Thereafter a company was organized by the defendant and others which took on the Sutton group, and some time subsequently thereto Loring and his associates purchased the stock in the company so organized for the sum of $125,000.
As stated, the foregoing facts are not disputed, except that the defendant denies having employed or authorized the plaintiff to find a purchaser for the “Sutton group.” The defense made, in addition to this denial, is that
The only question for the jury to determine was as to whether or not the contract of employment as alleged was shown, or, in case it did not so find, whether plaintiff rendered services in finding a purchaser for the property, of which the defendant had availed himself. There is no dispute as to the value of the services, if it be found that they were rendered.
We may say here that the affidavits of ten of the members of the jury were filed and considered upon the motion for a new trial, no one of which tends to show that the jury was in the least influenced by the letter in question, while nine of them emphatically state that they were not influenced by it. Of course, it is a well-known rule that a juror cannot be heard to impeach his own verdict; but we do not think the rule applies in this situation, as the affidavits did not tend to impeach it. Southern Nevada G. & S. M. Co. v. Holmes M. Co., 27 Nev. 107, 73 Pac. 759, 103 Am. St. Rep. 759.
“Q. How do you know that yourself? A. Because I heard it through Mr. Farreta; he told me himself that when Mr. Loring bought he put his pro rata toward the debts they owed.
“Q. Then you did have a talk with Mr. Farreta about this sale ? A. That was the time when Mr. Farreta was in San Francisco and gave me the note, promissory note for $1,715. He told me he had no money to pay me, but he had agreed with Mr. Sutton to pay me the commission, and asked me if I would accept his note.
*402 “Q. And isn’t it a fact that at the time you accepted the note you said you merely wanted the note to use in the case against Mr. Sutton and would return it to him ? A. I made no such remark.
“Q. Did Mr. Farreta pay the note? A. I understand since I came here that Mr. Farreta gave me a j udgment for the note. I am not a lawyer, so I do not understand just what that means.”
This witness also testified:
“A. Because at our meeting in San Francisco on Post Street, Mr. Farreta said that Mr. Sutton did say to them that he gave me a contract that he would pay me a commission, and that it was satisfactory to him, that he would pay it; that is why I demanded the money afterwards separately from Mr. Farreta.”
The existence of the note having been overwhelmingly established by the testimony brought out by counsel for the defendant, and that it had been executed for Farreta’s share of the commission alleged to have been earned by the plaintiff, pursuant to an understanding with Sutton himself, we cannot see how it can be said that the note, which was but cumulative evidence of what had been proven by undisputed testimony upon the inquiry of counsel for defendant, could have prejudiced the defendant. The learned trial, judge, in his written opinion, dwells upon the fact that counsel for the plaintiff, in the closing argument, “maintained in substance that since Farreta had performed his portion of the obligation flowing from the contract, there was
“The nine jurors who found the verdict made affidavits to the effect that during all their deliberations, the balloting stood nine to two, nine to three, or eight to four in favor of the plaintiff, and that the verdict was not influenced by the létter; but it appears that during such balloting, the amount of the verdict was not considered until after the decisive ballot was taken.”
It appears that the idea which influenced the court in considering this question was solely the amount of “damages” which should have been assessed by the jury. It may be that this position would be sound but for the fact that there was never a controversy as to the amount of the verdict; the real question was whether there should be a verdict in any amount, since the defendant denied all liability. Under all of the testimony, it is clear that if there should have been a verdict
We have examined the record with a view of ascertaining whether any of the grounds assigned as a basis for a new trial, and which were not specifically considered by the trial court, have merit in them, and find none. We are of the opinion that the order appealed from should be reversed, and that judgment should be rendered upon the verdict returned by the jury.
It is so ordered.
Rehearing
By the Court,
The petition for rehearing must be denied. It is contended that in February, 1918, and before Loring visited Mill City, Sutton sold an interest in the property to W. C. Pitt, and hence the plaintiff is not entitled to commission thereon. This point was not urged in the briefs, nor, so far as we remember, or as appears from our notes or the notes of the official reporter, was it presented upon the oral argument. In view of the entire record in the case, we think there is no merit in the contention; but, in any event, we cannot consider it when presented for the first time on petition for rehearing. Nelson v. Smith, 42 Nev. 302, 176 Pac. 261, 178 Pac. 625; In Re Forney’s Estate, 43 Nev. 227, 184 Pac. 206, 186 Pac. 678.
As to the other matters urged in the petition, we are entirely satisfied with what we said in our former opinion.
For the reasons given, the petition is denied.