150 P. 306 (Nev. 1915), 2130, Christensen v. Duborg

• Date: 22 July 1915
• Citation: 38 Nev. 404,150 P. 306
• Docket Number: 2130.
• Parties: CHRISTENSEN v. DUBORG ET AL.
• Court: Nevada Supreme Court

Page 306

150 P. 306 (Nev. 1915)

38 Nev. 404

CHRISTENSEN

v.

DUBORG ET AL.

No. 2130.

Supreme Court of Nevada

July 22, 1915

Appeal from District Court, Washoe County; Cole L. Harwood, Judge.

Action by H. C. Christensen against C. H. Duborg and others. From a judgment for defendants and an order denying a new trial, plaintiff appeals. Affirmed.

T. A. Brandon, of Minnemucca, and Fred B. Hart, of Oakland, Cal., for appellant.

George Martinson, of San Francisco, Cal., and B. F. Curler, of Elko, for respondents.

COLEMAN, J.

This is an appeal from a judgment in favor of respondents, following an order sustaining a motion for a nonsuit, and from an order denying a motion for a new trial.

Appellant, who was plaintiff in the trial court, brought suit against the respondents, Duborg, Anderson, and Skow, to recover judgment in the sum of $2,250. Omitting the formal portions of the amended complaint, it reads as follows:

"That prior to the 9th day of September, A. D. 1909, he performed services for defendants as their agent in procuring the sale of 500,000 shares of Philadelphia Western Mining stock, at their special instance and request; that on the 9th day of September, A. D. 1909, for and in consideration of plaintiff's said services rendered as aforesaid, the defendants agreed in writing to pay to the plaintiff 10 per cent. commission on all moneys received from the said sale of said stock as the same was received; that thereafter plaintiff and defendants entered into a further agreement by way of compromise as to the amount of said compensation, defendants thereby agreeing to pay plaintiff for his said services the sum of $3,000, and plaintiff agreed to take said sum in full compensation for his said services; that thereafter defendants paid plaintiff on said last-mentioned agreement the sum of $750, and no more, leaving a balance due and unpaid on said last-mentioned agreement of the sum of $2,250."

From a careful reading of the amended complaint it will be seen that appellant bases his cause of action upon three facts, viz.: First, that prior to September 9, 1909, he procured a sale of certain stock; second, that on September 9, 1909, respondents, in consideration of his said services (already performed), agreed to pay 10 per cent. of all moneys received from the sale of said stock; and, third, that thereafter appellant and respondents entered into a compromise as to the amount which appellant was to receive, fixing a flat sum of $3,000.

The first question to be determined is: Did appellant procure the sale of the stock mentioned? If he did not, the question of the amount of the compensation agreed upon, if any, need not be considered.

The evidence given in behalf of appellant tends to show that in July, 1909, he entered into an agreement with respondents to procure for them a purchaser for 600,000 shares of stock in the Philadelphia Western Mining Company, and in the event of the sale, pursuant to the terms of the contract, he was to receive a certain commission as compensation for his services. After procuring this contract, appellant went to Goldfield, where he induced one M. C. Scully to visit

Page 307

and examine the property of the company, but no sale was made under the terms of the contract. A contract, however, in the nature of an option to purchase, was entered into between the respondents and said Scully on September 9, 1909, after appellant's July contract had expired. By its terms respondents agreed to place in escrow with the Nixon National Bank of Reno 500,000 shares of the Philadelphia Western Mining Company's stock, to be delivered to said Scully, his heirs or assigns, upon the payment by Scully, on or before April 1, 1910, to the bank, to the credit of respondents, of $125,000.

At or about the time of the making of the option agreement with Scully a paper, of which the following is a copy, was executed by the respondents:

"Rock Creek Canyon, Sept. 9th, 1909.

For and in consideration of the services rendered as agent in the sale of 500,000 shares of Philadelphia Western Mining stock, we, the undersigned, hereby agree to pay to H. C. Christensen 10 per cent. commission, such commission to be paid each time a payment on said stock is made.

[Signed] C. H. Duborg.

Henry Anderson.

M. Skow."

The evidence upon the part of appellant tended to show (and it is not disputed, as we understand it) that the services mentioned in the statement of September 9th, just quoted, related to the option agreement between respondents and Scully of even date, that in the event Scully complied with the terms of his option, appellant would be paid. Thereafter a statement was signed by respondents, of which the following is a copy:

"Hilltop, Sept. 9th, 1909.

We, the undersigned, owners of 500,000...