Opinion
No. 20286. Department Two.
March 28, 1927.
JUDGMENT (54) — NOTWITHSTANDING VERDICT. Where the testimony is conflicting upon all points in dispute the court has no power to grant judgment notwithstanding the verdict.
BROKERS (32) — ACTION FOR COMPENSATION — EVIDENCE — ADMISSIBILITY. Where the issues were as to whether a broker was the procuring cause of a sale or whether the deal had fallen through, it is competent to prove that the intending purchaser had sought to buy another place and put up earnest money, and had again later taken up the purchase after the agent's authority had ended.
Appeal from a judgment of the superior court for Yakima county, Hawkins, J., entered June 1, 1926, upon the verdict of a jury in favor of the defendants, in an action on contract. Affirmed.
Frank J. Allen, for appellant.
Harcourt M. Taylor, for respondents.
In February, 1925, the defendants listed their ranch for sale with the plaintiff, a real estate broker. The contract is in the usual form and runs for a period of "30 days from date hereof and thereafter until withdrawn by ten day's written notice."
In May, plaintiff brought to inspect the place one Beckman, recently from another state, with the expectation of selling the property to him. Little was said at the time regarding the property, as Beckman was apparently "just looking around." The same week the plaintiff returned to the ranch and notified the defendants that he expected to be able to sell to Beckman. In June, nothing further having been done, the defendants wrote the plaintiff a letter inquiring what results had been obtained, and notifying him that unless a sale was made within ten days the contract would be cancelled.
Beckman in the meantime inspected a number of properties and found one that suited him and placed his deposit money for it with the listing agent. The deal fell through because the owner refused to sign up. Thereafter Beckman, through some friends, again took up the question of purchasing the defendants' place, and finally, on September 4, agreed to purchase it, and consummated the deal on October 4. Thereupon the plaintiff sued the defendants for a commission of five hundred dollars, claiming that he had secured the purchaser, Beckman. The cause came on for trial before a jury, and a verdict was rendered in behalf of the defendants, and judgment entered thereon. This appeal followed.
[1] It is first urged that judgment should have been rendered in favor of plaintiff notwithstanding the verdict. This claim of error is predicated upon the assumption that the evidence established without contradiction that the agent was the procuring cause and that there was an attempt to cancel the contract while negotiations were pending.
But it was a question for the jury as to whether the appellant was the procuring cause, and likewise whether there were any negotiations pending at the time notice of cancellation was given. The testimony was diametrically opposed upon these points, and the rule that the court can grant judgment notwithstanding the verdict only in those cases where there is neither evidence nor reasonable inference from the evidence to justify the verdict is, of course, too well settled to permit of any doubt.
Several instructions are complained of, but we find no ground for claim of error in any of them. Standing alone, some of them may not have covered every point in issue, but taken together as instructions must be, they are clear and correctly interpret the law applicable to the issues made under the pleadings and the evidence.
[2] It is also claimed that the court erred in permitting Beckman to testify that, after he had given up the question of buying the ranch in question, he and another man tried to buy a different place and deposited earnest money thereon. This evidence was admitted to show that the purchaser had abandoned any idea of buying respondents' place. Appellant urges that proof of abandonment by the purchaser is insufficient to affect the appellant's claim, as the appellant never abandoned the attempt to make the sale. The question of whether the appellant did abandon any attempt to make the sale was a question for the jury, and the proof of abandonment of the purchase by Beckman was material upon the question of whether appellant had produced, as he claimed in the complaint, "a purchaser able, ready and willing to buy," or whether the negotiations had fallen through, and then again later taken up through the instrumentality of other persons, and not through appellant.
Many of the authorities cited by appellant lay down certain rules applying in cases of this character, but, as we view the testimony, it is only by assuming the very facts in favor of appellant which the jury has found against him that the law stated therein becomes applicable.
We find no error in the record, and the judgment is affirmed.
MACKINTOSH, C.J., PARKER, TOLMAN, and FRENCH, JJ., concur.