32 Wash. 683 | Wash. | 1903
The opinion of the court was delivered by
The respondent who was plaintiff below, brought this action against the appellant on an assigned claim to recover the sum of $2,000, alleged to be due as commissions for the sale of certain real property belonging to appellant. The sale was alleged to have been made by one F. Hoehbrunn, a real estate broker, under a contract with the appellant, the claim for commissions having been assigned to the respondent by Hochbrunn by an assignment in writing. The trial was had before a jury, which returned a verdict in favor of the respondent for $950, for which sum the judgment was entered from which this appeal is taken.
The appellant’s first assignment of error goes to the sufficiency of the complaint. It contends that the complaint fails to state facts sufficient to constitute a cause of action, and that the court erred in permitting the respondent to introduce evidence thereunder, over its objection made after the jury had been impaneled and sworn to try the cause. But we think the complaint has in it all of the elements necessary to a good cause of action-While it is long, and recites with much detail the transaction on which the action is founded, in substance it is alleged that the appellant, being the owner of certain real property, placed it in the hands of the assignor of the respondent for sale at a fixed price, agreeing to pay a fixed sum as a commission in case a sale should be effected at the price named; that the assignor procured a person
It is next complained that the court erred in refusing to grant a nonsuit. The respondent did not testify personally in the action. While Hochbrurm was on the stand he testified that the claim sued upon had been assigned to the respondent as security for a debt, and that the debt had been fully paid prior to the trial. The assignment was in writing, and there had been no reassignment of the claim from the respondent to Hochbrunn. The appellant contends that the payment of the debt itself operated as a reassignment of the claim, and hence the respondent was not the real party in interest. Doubtless, an assign
When offering the deposition of C. H. Black, the appellant objected to certain of the interrogatories on the ground that they were leading. Its objections were in part sustained and in part overruled. It assigns error on the objections overruled. Inasmuch as it w'as the appellant itself offering the deposition, it is somewhat difficult to understand just how it can complain because the court refused to sustain its objection to the questions asked, even though they were originally propounded by the other side. The general rule is that, when a party offers a deposition taken by his adversary, he adopts it as his own, and will not be allowed to deny its competency or legality, or to impeach the veracity of the witness. But, waiving this, we see no error in the ruling in any event. When leading questions will be allowed is largely a matter of discretion with the trial court, to be reviewed only for its abuse. Here there was no abuse of
As its first afiirmative defense the appellant pleaded as res judicata a judgment in a former action between the same parties for the same cause of action. The judgment roll was offered in evidence on this trial, and an objection interposed thereto and sustained. This was not prejudicial error. A perusal of the judgment roll shows that it was a judgment of dismissal based on the insufficiency of the complaint, and did not purport to determine the merits of the controversy. Moreover, it expressly recited that it was without prejudice to another action. In no sense could the judgment have been res judicata of the present action.
The appellant next complains that the court erred in refusing to give to the jury certain instructions requested by it. A careful examination of the several assignments has convinced us that no error was committed by the court
Of the instructions given the following is assigned as error:
“I instruct you further, gentlemen of the jury, that if you believe from the evidence in this cause that Mr. Hochbrunn was unable to bring a purchaser, ready, able, and willing to accept the terms of purchase laid down in his contract with the owner of the property, and if you further believe that his own efforts to procure a purchaser had been abandoned, or if you believe -that the broker’s authority had been terminated in good faith by the defendant, and that subsequent to such abandonment or termination the defendant itself opened negotiations with the final purchaser of the property, and consummated that purchase on account of its own efforts, or on account of the efforts of persons other than Mr. Hochbrunn, that under those circumstances your verdict would have to be for the defendant in this cause.”
It is urged that the clause, “and you further believe that his own efforts to procure a purchaser had been abandoned,” renders the instruction obnoxious, because it compelled the jury to find not only that the broker had failed to find a purchaser ready, willing, and able to take the property, but that the defendant’s efforts to find a purchaser had been abandoned, before the owner could sell; while the law is that in either of these events, and not necessarily on the happening of both, the appellant was entitled to a verdict. It may be that, as an abstract proposition of law, the appellant’s contention is correct, hut it does not necessarily follow that an instruc
Another instruction complained of was the following:
“I instruct you, also, gentlemen of the jury, if you believe from the evidence that Mr. Ilochbrunn was unable to bring a purchaser ready, willing, and able to buy the property in question at- the price demanded, and if you further believe that after such inability had taken place a reasonable time had elapsed within which to complete and to consummate the negotiations on his part — that is to say, on Mr. Hochbrunn’s part — after such a time had elapsed, the defendant would he at liberty to proceed on its own account to negotiate and sell, even with Mr. Hochbrunn’s customer, and would have the right to consummate that sale through its own efforts or through the efforts of other persons, without the aid of Mr. Hochbrunn; and, if you believe that the evidence in this cause conforms to that state of facts which I have just mentioned, your verdict will have to be for the defendant in this cause.”
It is said that this is erroneous, because it assumes that the broker had the exclusive right to sell the property, when there was no evidence that such was his contract. It is plain from the language of the instruction that the court was attempting to charge the jury upon the appel
In charging upon a particular branch of the case the court used these words: “and here we come to some of tlie most important allegations on the part of the plaintiff, and to some of the most important points at issue in this ease”, proceeding then to state some of the contentions made by the pleadings. This is objected to because, as the appellant contends, the matters stated by the court were not an issue at all in the pleadings, and consequently could not be some of the most important issues. It seems to us, however, that the matters stated by the court were clearly at issue between the parties not only by the pleadings, but in the evidence also. This being true, it was not error, nor a comment on the facts, for the court to define those issues to the jury. The unhappy part of the instruction is the remark quoted, but we do not think it reversible error. If the remark itself warrants a reversal, then it would warrant a reversal on the assignment of either party, as it was no more directed against the one than the other. But it is rare that a remark of the trial judge can be successfully complained of by both parties to an action. Usually, where it appears to operate equally against both, the one complaining must show some special injury before he can successfully claim error. This rule should, we think, be applied here. And as it does not appear that the appellant was in anyway prejudiced by the remark, it was, if error at all, error without prejudice, and not a cause for reversal.
Mount, Hadley, Anders and Dunbar, JJ., concur.