Pearson v. Wheeler

CONREY, P. J.

Plaintiff appeals from a judgment of nonsuit.

The plaintiff alleges that he entered into an oral contract with J. Kittredge Wheeler whereby plaintiff was to render services to Wheeler in locating and examining land for particular purposes specified by Wheeler; that plaintiff should assist Wheeler in selling any land so located and examined; that

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out of any sale consummated in pursuance of said contract Wheeler would pay or cause to be paid to the plaintiff one-third of any commission received by Wheeler from the sale of any such lands. Plaintiff further alleged that he performed all services which by the terms of said contract were to be performed by him; in particular that .the plaintiff located and examined a tract of land in Madera County, known as the Lauganour tract, and assisted Wheeler in selling the same; that out of the sale of said tract defendant received as commission therefor the sum of nine thousand dollars; that plaintiff became entitled to one-third of said commission, but that. Wheeler refused to pay and has not paid to plaintiff the same or any part thereof.

The answer, which was filed by Wheeler, denied that he entered into any contract with the plaintiff whereby the plaintiff was to render services to the defendant in locating and examining land. As there is no evidence in the record tending to show that the contract included any such purpose or any agreement concerning the same, we may dismiss that element of the case from further consideration. The answer “admits that it was agreed between the said plaintiff and the defendant that the plaintiff should have one-third (%) of any commission earned for the sale of the tract of land known as the Phil Lauganour Tract, if the said plaintiff and said defendant should be successful in selling said land.” The answer admitted that the plaintiff did take defendant to see the Lauganour tract and defendant examined the same; denied that the plaintiff assisted the defendant in selling said tract; denied that out of the sale thereof the defendant received a commission of nine thousand dollars, and denied that the plaintiff was according to the terms of any contract between them entitled to one-third of nine thousand dollars; admitted that the plaintiff and the defendant co-operated in an effort to sell said tract of land, and that if said sale had been made as the result of the effort of the plaintiff and the defendant, the plaintiff would have been entitled to one-third of the commission which might have been earned; denied that the defendant received as a commission for the sale of said tract the sum of nine thousand dollars or any other sum, but, on the contrary, alleged that the defendant became the purchaser thereof; admitted that there was an understanding between the plaintiff and the defendant that if the defendant should effect the