Wilson v. Morton

The Court. Plaintiffs alleged that defendants agreed to pay them fifty cents an acre for all lands in the county of Kern which they should examine and advise defendants to purchase, and which should be afterwards purchased by defendants; .that in pursuance of the agreement they examined 14,020 acres of land, and advised defendants to purchase the same; that all of said lands were purchased and" were afterwards sold by defendants, whereby defendants became indebted to plaintiffs in the sum of $7,010. The jury returned a verdict in favor of plaintiffs for $3,520. Judgment was entered for that amount. A motion for new trial was denied, and defendants appealed. The contract was not one required by the statute of frauds to be in writing. Section 1624 of the Civil Code does not apply. Plaintiffs [599]are not claiming commissions as defendants’ agents or brokers, for the sale or purchase of real estate. The compensation claimed by them is for services rendered in pointing out property purchased by the latter, and for advice given them. We think the evidence is sufficient to sustain the verdict. While it is not clear to us how the jury, under the evidence, took eleven sections as the basis of the verdict, we should not disturb the verdict on the ground that there is no evidence to support it.

We see no error in the ruling of the court excluding the evidence offered by defendants to show that they had employed and paid other parties to assist them in selecting a portion of the lands described in the complaint. If the evidence was not wholly incompetent, it was so uncertain and immaterial that it could not have aided the jury in determining the issues between the parties.

Judgment and order affirmed.

Paterson, J., dissenting. The defendants, in their answers and in their testimony, flatly denied that they had ever employed plaintiffs, or either of them, to examine any lands,-or advise them in relation thereto. In corroboration of their own testimony they offered to show that they had employed and paid other parties to assist ¿Item in selecting the lands described in the complaint. The questions propounded to the witnesses Oaks and Boot for this purpose -were objected to and ruled out. I think the questions were proper, and should have been allowed. The fact that defendants were advised by other parties, if shown to be true, would not of course be a defense to plaintiffs’ claim if the contract was made and the services were performed as alleged by them; but it was a circumstance which the defendants were entitled to have before the jury in determining the issues. If the defendants could have proved to the entire satisface tion of the jury that they liqd been fully advised by Boot