Jaffe v. Vitz

BARTLETT, J. pro tem.

This is an appeal from a judgment rendered in favor of the plaintiff for $5,000 on an action brought by him for the breach of the following agreement:

“October 5, 1945

“In consideration of services rendered by Harry Jaffe to the undersigned in connection with the transfer of possession of the Hermoyne Apartments, the subject of Pacific States Savings and Loan Company sales file H-4, the undersigned hereby agrees simultaneously with the execution of the agreement of transfer to pay to the said Harry Jaffe in full for such services the sum of Five Thousand ($5000.00) Dollars. Payable $1000.00 per month. Nov. 10, 1945. JLV

(J.L. Vitz)”

The complaint set forth the contract and alleged the rendition of services by plaintiff for defendant and that there was a valuable consideration for the written contract. The answers denied that any services were rendered by plaintiff; denied that there was any consideration for the contract, and affirmatively alleged “that plaintiff has done nothing of value for this defendant other than to obtain from defendant the agreement set forth and pleaded . . . .” The answer also, as an affirmative defense, pleads fraud.

The appellant charges that the court erred in admitting certain evidence regarding services rendered prior to the date of contract by respondent in acquainting appellant with the Hermoyne Apartments and the other apartment houses, and further contends that there was a variance between

[812]

the pleading and the proof. He charges too that the trial judge was guilty of prejudicial misconduct.

At the time the rulings were made concerning the introduction of evidence of which plaintiff complains, the witness was Ted Berns, an employee of the plaintiff, who was being examined concerning time he had spent showing appellant the Hermoyne and other apartment houses. Appellant objected to this line of testimony and'the following occurred:

“Q. Approximately how much time during every day did you spend with Mr. Vitz showing him properties?

“Mb. Ross: That is objected to as incompetent, irrelevant and immaterial. If the plaintiff is entitled to recover he is entitled to recover on the contract and not the time spent that this man showed buildings.