[No. 32016. Department Two. Supreme Court August 21, 1952.]
PRIESTLEY MINING AND MILLING COMPANY, Respondent, v.
LENOX MINING AND DEVELOPMENT COMPANY, Appellant.«1»
[1] FORCIBLE ENTRY AND DETAINER - NATURE AND FORM OF REMEDY - TITLE OR RIGHT OF POSSESSION - ACTUAL POSSESSION. In a forcible detainer action to obtain possession of mining claims, questions of title and right to possession are excluded from consideration; and the only questions to be decide [missing text here]he may waive his objection by subsequently using it for his own purposes; and a party who, in support of his own case, used a notebook which had been admitted in evidence after having been used to refresh the memory of an adverse witness, thereby waived his objection to its admission and cannot urge such admission as error.
[4] BROKERS - ACTIONS FOR COMPENSATION - EVIDENCE - SUFFICIENCY - VALUE OF SERVICES. In an action for a broker's commission on the sale of tractors, held that the evidence of the plaintiff's compensation in other transactions where he merely found a buyer was competent to establish the reasonable value of his services to the defendant in the transaction in issue; and it was not error for the court to instruct the jury upon the quantum meruit cause of action.
[5] SAME - ACTIONS FOR COMPENSATION - TRIAL - INSTRUCTIONS - AUTHORITY TO EMPLOY OTHER BROKERS. In such an action, it was not error for the court to instruct the jury that if it found that the plaintiff was entitled to be compensated for finding a buyer for the tractors then he would be entitled to such compensation if he did find such buyer whether he did so directly or through the advice
«1» Reported in 247 P. (2d) 237.
2 SEVENER v. N. W. TRACTOR & EQUIP. CORP. [41 Wn. (2d)
and assistance of others, where it appears that the authority of the broker to employ other brokers on behalf of the defendant was an issue of fact for the jury, and the jury was also instructed that if it found that the plaintiff had acted in an unauthorized manner and was not authorized to obligate the defendant by employing other brokers then it must find that the plaintiff was not entitled to compensation.
[6] JOINT ADVENTURES - FORM, REQUISITES, AND VALIDITY OF CONTRACT. The relationship of joint venturers may be inferred from the facts of a case, and the contract may be express or implied.
[7] SAME - EXISTENCE OF RELATIONSHIP - EVIDENCE - SUFFICIENCY. On an issue as to whether a contract of joint venture existed between two corporations in a transaction involving the purchase and resale of surplus army equipment, held that the evidence was sufficient to warrant the submission of such issue to the jury, and that it was not error to instruct the jury upon the law of joint venture.
[8] BROKERS - ACTIONS FOR COMPENSATION - TRIAL - INSTRUCTIONS - SUFFICIENCY OF SERVICES. In an action for a broker's commission on the sale of tractors, the court properly instructed the jury that, even though it believed that the broker's principal and the purchaser's agent would have met without the broker's activities, if it further found that such activities actually brought them together as buyer and seller then it was immaterial that they might eventually have met and consummated a sale.
[9] SAME - COMPENSATION - SUFFICIENCY OF SERVICES - BRINGING PARTIES TOGETHER. An agent should not be precluded from recovering a commission on a sale if he was the efficient cause of the buyer and seller getting together and making the sale merely because, under the circumstances existing, the buyer and seller might eventually in the course of subsequent events have met and negotiated a sale without his assistance.
[10] TRIAL - INSTRUCTIONS - REQUESTS - ALREADY GIVEN. Error may not be predicated upon the court's refusal to give a requested instruction if its subject is sufficiently covered by another instruction.
[11] APPEAL AND ERROR - TRIAL - WAIVER OF ERROR - RULINGS AS TO SUFFICIENCY OF EVIDENCE. Where the defendant did not stand upon his motion to dismiss at the close of the plaintiff's case but went forward to produce evidence in his own behalf, he thereby waived his motion and his assignment of error based upon its denial cannot be considered.
[12] BROKERS - ACTIONS FOR COMPENSATION - EVIDENCE - SUFFICIENCY. In an action for a broker's commission on the sale of tractors, held that the minds of reasonable men could have differed upon the evidence presented, and that there was sufficient conflicting evidence upon all the material issues to make their determination a matter for the jury.
[6] See 138 A. L. R. 968; 30 Am. Jur. 681.
Aug. 1952] SEVENER v. N. W. TRACTOR & EQUIP. CORP. 3
[13] APPEAL AND ERROR - REVIEW - VERDICT. On appeal from a judgment entered upon a verdict, the scope of review is limited to the question whether there was substantial evidence to sustain the verdict; and the supreme court cannot weigh the evidence, nor will a judgment be reversed even if the verdict is against the weight of the evidence where there is no reversible error in the conduct of the trial.
Appeal from a judgment of the Superior court for King county, Batchelor, J., entered June 22, 1951, upon the verdict of a jury rendered in favor of the plaintiff, in an action for a broker's commission. Affirmed.
Ferguson, Burdell & Armstrong, for appellant.
Bassett, Geisness & Vance, for respondent.
DONWORTH, J. -
Plaintiff was, at the time this controversy arose, a salesman employed by defendant, a Washington corporation engaged in the buying and selling of machinery. He sought in this action to recover a commission of $24,562.44, which he allegedly earned in finding a buyer for eighty-six tractors pursuant to his contract of employment, or, in the alternative, that he be awarded the reasonable value of his services in finding a buyer at the special instance and request of defendant.
In his amended complaint, plaintiff alleged, as a first cause of action, his employment, that his compensation was five per cent of the gross sale price of machinery sold to buyers found by him, and that Frank Murphy, an officer of defendant corporation, requested him, early in May, 1947, to find buyers for machinery and equipment which had been acquired by a Philippine corporation having the same name as defendant. He further alleged that Murphy then informed him that he would be protected in connection with such sales, which was intended to mean, and which plaintiff took to mean, that he would receive his regular commission of five per cent of the gross sales price, but that thereafter, about July 1, 1947, Murphy told him his compensation for sales of the Philippine corporation machinery would be at the rate of five per cent of sixty-five per cent of the factory list price of the machinery, and that sales would have to be made at a price equal to or in excess of sixty-five per cent
4 SEVENER v. N. W. TRACTOR & EQUIP. CORP. [41 Wn. (2d)
of the factory list price in order for him to receive a commission.
Plaintiff then alleged in some detail the means by which he secured a buyer who, on or about June 25, 1947, purchased from the Philippine corporation eighty-six tractors for a total price of $491,248.82, which was equal to sixty-five per cent of the factory list price of the tractors, and that he had demanded and defendant had refused to pay him his commission thereon. He further alleged that defendant and the Philippine corporation of the same name were joint venturers, and that the sale of the eighty-six tractors was consummated in the course of the joint venture.
In his second cause of action, plaintiff pleaded that, at the special instance and request of defendant, he found a buyer for the tractors and that the reasonable value of his services was $24,562.44.
In its answer, defendant denied all the material allegations of the amended complaint and pleaded as affirmative defenses that the tractors were owned by Northwest Tractor & Equipment (Phil.) Corp. or another Philippine corporation, Northwest Commercial Corp.; that defendant was not entitled to and did not benefit from the sale; that Murphy was not authorized by defendant to make any agreement to pay commission upon sales of machinery belonging to the Philippine corporations and that any such agreement made by Murphy was not binding upon defendant; that plaintiff was not authorized to employ subagents in selling or to determine the terms upon which sales would be made by the Philippine corporations.
It does not appear from the record that plaintiff made any reply to these affirmative defenses.
The action was tried before the court sitting with a jury. Defendant's challenge to the sufficiency of the evidence and motion for dismissal at the close of plaintiff's case was denied, as was its motion for a directed verdict at the conclusion of the trial.
The jury returned a verdict for plaintiff for the full amount prayed for. Defendant's motion for judgment notwithstanding the verdict or in the alternative for a new
Aug. 1952] SEVENER v. N. W. TRACTOR & EQUIP. CORP. 5
trial was denied by tide court, and from a judgment subsequently entered upon the jury's verdict defendant has appealed.
The factual background of this controversy is an extremely complicated one. To attempt to describe the details of the business relationship of the parties and their connection with the sale of these tractors would unduly extend this opinion and would serve no useful purpose. The testimony introduced was in direct conflict upon the material issues presented. The jury had the right and duty to determine the factual issues under proper instructions. We, therefore, confine our discussion of the facts to those necessary to an understanding of appellant's assignments of error.
At the conclusion of World War II, the United States had a large quantity of military equipment located in the Philippines. Approximately $630,000,000 worth of this equipment was declared to be surplus and given to the Philippine government, which in turn sold some of it to private buyers.
Bernard Campbell and Frank Murphy were, prior to July, 1946, equal partners engaged in the business of buying and selling machinery in Seattle. At that time, they incorporated their business as Northwest Tractor and Equipment Corp., appellant in this action. Except for one qualifying share, Ct be anticipated and settled now.
The judgment is affirmed.
SCHWELLENBACH, C. J., HILL, HAMLEY, and FINLEY, JJ., concur.