Grunsky v. Field

McLAUGHLIN, J.

Defendant prosecutes this appeal from the judgment and from an order denying his motion for .a new trial. The action was brought to recover commissions on a sale of real estate, under a contract which reads as follows: “Field Ranch March 11, 1903. In consideration of one dollar the receipt of which is hereby acknowledged, I authorize Grunsky

&

Dietrich, for five months, to sell my farm of 160 acres, including standing crop, for $65.00 per acre, and I agree if any sale results through the efforts of said Grunsky & Dietrich, at above or less price, to pay them the commissions of 5 per cent. J. L. Field.”

On April 17, 1903, the property was sold to C. J. Bender for the sum of $10,400, and the court found that such sale resulted through the efforts of the respondents.

The main point urged upon this appeal is that such finding is not supported by the evidence. An examination of the record, however, discloses a substantial conflict in the evidence on this point, and under the well-settled rule such finding will not be disturbed.

(White

v.

Beer,

105 Cal. 9, [38 Pac. 513];

Taylor

v.

McConigle,

120 Cal. 125, [52 Pac. 159];

Raymond

v.

Glover,

144 Cal. 548, [78 Pac. 3].).

The bill of exceptions shows that upon a former trial of the cause, the jury disagreed and that upon the second trial, which was before the court without a jury, the respective parties, in open court, stipulated and agreed: “That the cause be submitted to the court for decision upon the record of a former trial of this action before a jury as shown by the reporter’s notes taken upon such former trial.” The cause was thereupon argued and submitted for decision, upon such record, a copy of which is set forth in the bill of exceptions.

Numerous assignments of error, based upon rulings made and exceptions reserved at such former trial, are urged by appellant, but respondents insist that rulings made at the