Sterling v. Radford, 126 Wash. 372, 218 Pac. 205 (1923).

                Opinion Per TOLMAN, J.           126 Wash.

     [No. 18018. Department Two. September 11, 1923.]
W. C. STERLING et al., doing business as STERLING &
      ADAMSON, Respondents, v. COLIN RADFORD,
                     Appellant. 1

a close disputed question, where a witness makes a statement which
appears to be the opposite of the answer expected, it is error to
exclude proof that the witness had so stated about the same time
when she had full recent knowledge of the facts.

Appeal from a judgment of the superior court for
King county, Gilliam, J., entered November 29, 1922,
upon findings in favor of the plaintiffs, in an action on
contract, tried to the court. Reversed.

Carkeek, McDonald, Harris & Coryell, for appellant.

Chester & Pixley, for respondents.


TOLMAN, J. - Respondents, as plaintiffs, brought this
action to recover a brokers' commission for procuring
a tenant for an apartment house building. From a
judgment as prayed for, the defendant has appealed.

It is admitted that the prospective tenant was first
interviewed, and shown the plans of the building to be
erected and leased, by another broker, and the case
turns upon the question of whether or not these prior
negotiations were broken off before respondents intervened
and interested the same person, who finally executed
the lease. The testimony which was received
is conflicting upon this point, but after a careful
consideration, we cannot say that it preponderates against
the trial court's findings.

This leaves for consideration as the only other material
point raised, the question of whether or not the
court erred by rejecting evidence that should have been

1 Reported in 218 Pac. 205.

                STERLING v. RADFORD.                373
 Sept. 1923          Opinion Per TOLMAN, J.

received. For a proper understanding of this question,
some portions of the facts must be stated.

One Nellie Brownlow, who afterwards became the
lessee, appears to have been in the market for such a
lease, and this fact was apparently known to both
brokers interested in the transaction. She was first
approached by the broker Molluer, who showed her
the plans and told her the terms, both of which appeared
to have been satisfactory to her. She was informed
by Molluer that, if she leased, she would have
to pay him a commission, and she testified that she
refused absolutely to proceed on such terms, and that
the negotiations were then completely broken off.
Molluer as positively denies that the negotiations
were broken off, or even interrupted, though he admits
the matter of the payment of the commission was in

Within a few days after the time when, according to
Mrs. Brownlow's testimony, the negotiations through
Molluer ceased, respondent Sterling approached Mrs.
Brownlow with the same proposition, except that he
informed her that his commission would be paid by the
lessor, and she would be called upon to pay nothing
on that account. She thereupon indicated her desire
to enter into the lease, and she, with Sterling, went to
appellant's office to consummate the transaction. They
were sent by appellant to John Davis Company, the
general agent in charge of the whole matter, and John
Davis Company refused to recognize Mrs. Brownlow,
then or at any subsequent time, as respondent's client,
because Molluer had theretofore reported that he had
interviewed her, and that she was interested and probably
would take the lease.

Thereafter, by abandoning any claim to a commission
from her, Molluer succeeded in having Mrs.

                Opinion Per TOLMAN, J.           126 Wash.

Brownlow execute the lease. Respondents tendered
their further services throughout the transaction, and
at its close demanded a commission. That demand
being refused, they brought this action. On the trial
below, Mrs. Brownlow, having testified as hereinbefore
indicated, on cross-examination further testified,
without objection, that, when the lease was executed, she
informed appellant, the general agent, and all those
then present, that she thought respondents were entitled
to the commission, informing them that because
Molluer had demanded a commission from her, the
negotiations with him had terminated before respondents
undertook to interest her. This testimony appears
to have been the opposite of the answer counsel
expected to his preceding question, and he thereupon

"Don't you remember saying at the time in the
presence of these parties that Mr. Molluer was entitled
to the commission because he was the party who
first put the deal up to you?"

An objection was sustained to this question, and offers
to prove that the witness had so stated were afterwards
made, and, upon objection, refused.

The controlling question of whether the negotiations
through Molluer had been terminated was an exceeding]y
close one asserted by one witness and denied by
the other. As affecting the value of Mrs. Brownlow's
assertion, a statement made by her at about the same
time, when she had full and recent knowledge of all
the facts, and under the circumstances here shown,
which, unless further explained, would indicate that
the negotiations through Molluer were never broken
eft, and terminated on]y with the execution of the lease,
would seem to have some weight, and we think evidence
thereof should have been received and considered,

                STERLING v. RADFORD.                375
 Sept. 1923          Opinion Per TOLMAN, J.

not for the purpose of eliciting the opinion of
the witness as to who had earned the commission, as
her opinion on that subject is immaterial, but as
tending to discredit her statement that the negotiations
through Molluer had terminated. The two statements
(if there were two) are in their final effect

"As a general principle, it is to be understood that
this inconsistency is to be determined, not by
individual words or phrases alone, but by the *whole
impression or effect* of what has been said or done. On a
comparison of the two utterances, are they in effect
inconsistent? Do the two expressions appear to have
been produced by inconsistent beliefs? . . .

"The inconsistency may be found expressed, not in
words, but in *conduct* indicating a different belief."
2 Wigmore on Evidence, p. 1208, SS 1040.

The rejected offers indicate a possibility of statements
showing an inconsistency as so defined. We
think this principle has been recognized by this court
in French v. Seattle Traction Co.,
26 Wash. 264, 66
Pac. 404; Sound Timber Co. v. Danaher Lumber Co.,
112 Wash. 314, 192 Pac. 941; and State v. Fluhart,
123 Wash. 175, 212 Pac. 245.

Because of the errors indicated, a new trial must be

Reversed and remanded with instructions to grant
a new trial.

JJ., concur.