Sutro v. Easton, Eldridge & Co.

California Supreme Court Oct 27, 1900 No. S.F. No. 1699.Published

Before: Gray

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Holding. The court held that the trial court did not err in refusing a requested instruction because its substance was adequately covered by other instructions given to the jury, and that the defendant could not complain of a verdict based on a contract more favorable to it than the evidence might have otherwise supported.

Issues

Whether the trial court erred in refusing a requested jury instruction regarding the influence of the plaintiff's solicitations on the executor.
Whether the jury's verdict, which was lower than the amount sought, was unsupported by the evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“There was no error in refusing the requested instruction, because the substance of it was contained in the instructions that were given.”

“The appellant, however, cannot be heard to complain, because the jury gave it the benefit of the doubt and based the verdict on the contract most to its advantage.”

Synopsis

Action for Services—Securing Contract for Sale of Land—Refusal of Instruction Covered by Charge—Dispute as to Services.—In an action for services rendered by the plaintiff to the defendant in securing for defendant a contract for the sale of land, the refusal of an instruction requested by the defendant that if the solicitations of the defendant had in no way influenced the securing of the contract, and that if the party making the contract had prior to such solicitations placed the property for sale with the defendant, or had determined to do so, the jury should find for the defendant, is not ground for reversal, where the language used in the instructions given and not objected to was broad enough to cover the disputed point whether the plaintiff was instrumental in bringing the sale of the property to the defendant, and plainly presented that question to the jury.

Id.—Doubt as to Terms of Contract—Verdict to Appellant’s Advantage.—When the evidence showed that plaintiff had had different contracts with the defendant as to the securing of contracts of sale, one for one-third of defendant’s commissions, and one for one-half thereof, and there was doubt as to which contract was applicable to the case, the appellant cannot urge error in a verdict to his advantage for one-third of the commission, instead of one-half thereof as claimed by the plaintiff.

GRAY, C.

Appeal by defendant from a judgment in plaintiffs favor and from an order denying defendant’s motion for a new trial.

The action was brought to recover two thousand four hundred dollars claimed by plaintiff to he due from defendant

[340]

"for services rendered by plaintiff to defendant within two years last past, at the personal instance and request of defendant.” The points urged for a reversal are two, only.

1. It is claimed the court erred in refusing an instruction requested by, appellant which reads as follows: "If you find from the evidence that the solicitations of the plaintiff in no way influenced the mind of the executor of the Cullum estate, and that said executor had, prior to such solicitation, placed the property for sale with the defendant, or had fully determined so to do, you must find for the defendant.”

The court instructed the jury as follows: “The burden of proof is on the plaintiff to show that the services performed by him secured to defendant the sale of the property of the Cullum estate.

"If you find from the evidence that the services rendered by the plaintiff in no way tended to secure to the defendant the sale of the property of the Cullum estate, you must find a verdict for the defendant.

"If you find from the evidence that, at the time of the promise made to the plaintiff by the president of the defendant, the executor of the Cullum estate had placed the sale of the property of the estate in the hands of the defendant, and that this fact was unknown to the president of the defendant at the date he made such promise, you must find for the defendant.”

The evidence on behalf of respondent was to the effect that be had an understanding with defendant whereby he was to get a commission upon whatever property he brought to defendant and was thereafter sold by it; that plaintiff told Wen-' dell Easton that he thought he could get the Cullum estate, and Easton replied, “That’s right, go ahead and work the thing up”; that in pursuance of this understanding he saw Mr. G-ranniss, the executor of the Cullum estate, and told him that he was working for defendant on commission and that he would like to get the Cullum estate, and Granniss replied, “My boy, you shall have it; nobody shall have it but you.” Plaintiff .reported this conversation to Mr. Easton and Eastonreplied, “That is right, Charlie, go after him.” Subsequently,

Sutro v. Easton, Eldridge & Co.

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Synopsis

GRAY, C.

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