Childs v. Ptomey

Hunt, J. The evidence of the plaintiff himself tends to show that, at an interview with Mr. Ptomey, one of the de [507] fendants, he asked Ptomey what his price was for the mine, and was told, “§15,000 cash,” whereupon the plaintiff said he would have to ask the parties he brought to look at the mine §18,000; that he told Mr. Ptomey that he would bring some parties to him within four or five days, and he could make his own negotiations; that the parties came within a few days, and were introduced to the Ptomeys by the plaintiff; that subsequently, in July, negotiations were had between the defendants and certain persons representing the purchasers of the mine; that in September one J. B. Best, who had been represented by the parties who had been introduced to the Ptomeys by the plaintiff, purchased the mine for §10,000. The plaintiff was then asked whether he had told the Ptomeys, when they said they asked §15,000 for the mine, that if he brought purchasers there, or persons through whom a sale was made, he would require §3,000 for his services. The plaintiff answered in this way: “Yes, sir; I don’t know that I said so in the exact language, but that is what I meant. Yes, sir. The conversation regarding the price was §15,000. They had decided to ask §15,000 cash for the mine, and I said I should want §3,000 as my commission, that I expected parties, and that I would bring them here, and introduce them to them, and they could make their own negotiations,- — negotiate direct with the people. They said, with reference to that proposition of mine, they would have to ask §18,000. They said it was satisfactory — it suited them exactly — to negotiate direct with the people, instead of through me, or words to that effect. Henry Ptomey said that. There was no dissent or objection to the price that I stated at that time by either of the defendants. ’ ’ Plaintiff did not attempt to prove that his clients ■were ready or willing to pay §18,000 for the mine, nor did he offer any excuse in his testimony for their not doing so. At the conclusion of plaintiff’s testimony, the defendants moved for a nonsuit for the reason that the plaintiff had failed to prove ‘‘ the substantial allegation of his complaint, ’ ’ and had failed to prove the contract, relied upon and set out in the complaint, * * * or that he had sold the mine for the [508] price stipulated and pleaded in the complaint. This motion was overruled. We think this was error. The contract alleged in the complaint contained an express provision to the effect that plaintiff would find a purchaser for the mine for the sum of $18,000, but the theory upon which the plaintiff actually sought to recover was that he might recover his $3,000 commission without regard to that part of the agreement pleaded. This variance was not cured throughout the trial. The defendants consistently denied any such agreement. The divergence extended to such an important fact that the cause of action, as proved, was another than that set up in the complaint. No leave to amend was asked. The defendant was therefore entitled to a nonsuit. (Pomeroy’s Code Rem., § 553; Johnson v. Moss, 45 Cal. 515; Bryan v. Tormey, 84 Cal. 126, 24 Pac. 319; Newell v. Nicholson, ante, page 389. The instructions, too, were evidently drawn upon the erroneous theory that plaintiff’s right to recover was not contingent upon his agreement as pleaded; but that he could recover $3,000 commission if he found a purchaser for the mine, without regard to the material issue of the price that the customer should pay. Plaintiff recovered a general verdict and contends it is sufficient. But where the pleadings raised materially different law issues from those tried, and defendants saved their rights upon the trial, and no amendments were made, and the jury were instructed without proper regard to the issues of the complaint and answer, a verdict without specifying the amount of the recovery cannot aid the plaintiff in curing such antecedent substantial defects. The judgment must be reversed, and the cause remanded, with leave to the plaintiff to properly amend his complaint. We will briefly indicate our views upon the more important points raised in the briefs of counsel. Best, the purchaser of the mine, was a witness for plaintiff by deposition. He was asked to state what, if anything, he said to plaintiff, while at Virginia City, in connection with the purchase of said mine, and after he had visited the mine, that [509] it would be a sale, or that he would purchase the mine. Defendant objected, on the ground that the question was incompetent and immaterial, and called for hearsay testimony. The court overruled the objection. The witness answered that plaintiff told him, in the event of the Ptomeys selling to his (witness’) syndicate, the plaintiff had a commission coming from the Ptomeys, and witness told plaintiff that he would let him know when to go and get his commission. It was competent for the purchaser to testify to the fact that it was through the instrumentality and efforts of the plaintiff that he bought the mine, but the statements made between the broker and the purchaser in relation to commissions coming to him from defendants were not competent. If defendants relied upon the defense that plaintiff could not recover because he was employed by both parties, unless his double employment was disclosed, it seems that matter should have been pleaded as a distinct affirmative defense. (Pomeroy’s Code Rem., § 660; Bliss on Code Pleading, § 352.) Where however, there is an agreement to pay a middleman for services of value rendered, honestly entered into, it cannot be avoided on the ground that another person, with distinct and independent interests, has agreed, by a separate contract, to pay for the same services. If'the broker only undertakes to bring the parties together, so that they may make a contract, if they choose, without his interference in the contract itself, as the agent of either party, he is entitjed to compensation from both, on an agreement from each. (Rapalje on Real Estate Brokers, page 176; Rupp v. Sampson, 16 Gray, 398; Herman v. Martineau, 1 Wis. 151.) Certain answers of defendants’ witnesses, who said they ‘ ‘never considered plaintiff the agent of the Ptomeys, were stricken out against defendants’ objections.” The opinion of the witnesses was immaterial and properly excluded. As we think the question whether plaintiff acted as an agent of the plaintiff and defendants ought to have been pleaded before testimony tending to show he did so act was competent, it is unnecessary to further consider objections based upon the theory that such was his attitude. [510] Judgment reversed, and cause remanded, with leave to plaintiff to amend his complaint, and try the case anew. Reversed. Pemberton, C. J., and De Witt, J., concur.