Marsteller v. Leavitt

GAROUTTE, J. This is an appeal from an order granting a motion for a new trial. The action was one involving a claim for commissions based upon a sale of real estate. The claim is primarily evidenced by a contract in writing. Under this writing plaintiff was to receive his commissions when certain notes taken by the vendor of the real estate from the vendee were paid. In addition to the aforesaid written contract, plaintiff, by his' pleadings, set forth an oral contract, whereby he claimed a modification thereof as to the time of the paym'ent of the commissions. This alleged modification was to the effect that the commissions would be paid when plaintiff found a purchaser for the aforesaid notes. There is also an allegation to the effect that he found such purchaser, and the notes held, by the vendor were sold to that party. The court found against the alleged modification of the original contract, but found that a sale of the notes had been made. There was no issue as to the due execution of the original contract, other than as to the existence of a sufficient consideration upon which to base it. But upon that matter we will not here dwell. Judgment went for defendant, and plaintiff was granted a new trial. Upon this appeal we are only allowed to investigate the matters considered by the trial court upon the motion for a new trial. And we deem it only necessary to direct our attention to the consideration of one of these matters. Under objection, defendant was allowed to prove the amount he received from *152 the purchaser upon the sale of the notes. This was error upon any conceivable phase of the case, and respondent now concedes the ruling to be erroneous, but claims the evidence was harmless, and therefore the error committed was not prejudicial. It is hardly consistent for respondent’s counsel to insist upon the admission of evidence, under objection from the other side that it is immaterial, and after its admission, when error is predicated upon the ruling, to -then insist that the evidence was immaterial and therefore did no harm. The fact alone that the court admitted the evidence after objection made is the strongest kind of an indication that the court deem'ed it material, and, so deeming it, gave it weight in making the judgment in the case. Indeed, it is impossible for this court to say that this evidence had no effect upon the mind of the trial court in pointing the judgment. Plaintiff has advanced a theory in his brief whereby he claims that in law a sale of these notes by defendant, ipso facto, rendered his claim for commissions due. Pleadings are liberally construed in this state. There is but one form of action, and judgment is rendered on the facts stated in the pleadings. Possibly, the complaint in this action is sufficient in its facts to support a judgment based upon this theory of the cause, conceding, of course, that the proposition of law, as claimed, is sound. Perhaps the evidence admitted indicated that the notes were sold at a great discount, and for this reason the court denied plaintiff’s right of recovery. Of course, this is only speculation, but it tends to show that this court cannot say that the error committed by the trial court in the admission of this evidence was harmless. It is said in Storch v. McCain, 85 Cal. 308: “The overruling of the objection to admitting it on the ground that it was irrelevant and immaterial indicates that in the opinion of the court it was relevant and material. That the court attached some importance to this evidence we arc bound to presume from his admitting it against the objection made to it.” For the foregoing reasons the order is .affirmed. Harrison, J., and Van Dyke, J., concurred.