Mayhew v. Brislin

• Decision Date: 02 April 1910
• Docket Number: Civil 1117
• Citation: 108 P. 253,13 Ariz. 102
• Parties: FELIX MAYHEW, Defendant and Appellant, v. D. J. BRISLIN, Plaintiff and Appellee
• Court: Arizona Supreme Court

108 P. 253

13 Ariz. 102

FELIX MAYHEW, Defendant and Appellant, v. D. J. BRISLIN, Plaintiff and Appellee

Civil No. 1117

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the First Judicial District, in and for Yuma County. Edward Kent, Judge. Affirmed.

The facts are stated in the opinion.

Peter J. Robertson, Eugene S. Ives, and S. L. Pattee, for Appellant.

"Any act or declaration of either party connected with the transaction, whether prior or subsequent thereto, may be given in evidence in order to show what the agreement was. A fact is then proved, from which a jury may infer the understanding or intention of the parties; but the mere impression or understanding of one of the parties, not communicated to the other, can never justify the inference that the understanding of the other party was the same, and in order to constitute a contract or agreement, the assent of both parties is requisite. It would be a most dangerous relaxation of the rules of evidence. There would be no possibility of convicting a witness of perjury, on the ground of such evidence. His understanding of a transaction, if it may be called a fact, is one resting entirely in his own mind, and which cannot be disproved." Murray v Bethune, 1 Wend. (N.Y.) 191; Nichols v. Ore Co., 56 N.Y. 618; Slater v. Demorest Co., 94 Ga. 687, 21 S.E. 715; First Nat. Bank v. Booth, 102 Iowa 333, 71 N.W. 238; Diehl v. State, 157 Ind. 549, 62 N.E 51.

Where a witness testified as an expert upon a hypothetical question great latitude should be allowed in cross-examination of an expert witness in order to bring out the facts as to witness' competency as an expert. 8 Ency. of Pl. & Pr 767. And for the purpose of testing the skill, accuracy and knowledge of the witness, the cross-examiner is not limited to facts and theories founded in the evidence, but may cross-examine on purely imaginary and abstract questions. 5 Ency. of Ev. 632.

Ross & O'Sullivan and Timmons & Baxter, for Appellee.

On an issue as to the terms of an oral agreement it has been held proper to permit one of the parties thereto to state how he understood the matter. 3 Ency. of Ev., pp. 5-20, citing Wheeler v. Campbell, 68 Vt. 98, 34 A. 35; Linsley v. Lovely, 26 Vt. 123; State v. Lockwood, 58 Vt. 378, 3 A. 539.

The complaint set forth in detail the payments made under the option secured by appellee. The payments were proven, and admitted by appellant, subject to objection as to their competency. There was no error here. This was a suit on a quantum meruit. The compensation was not fixed by the contract. It was therefore competent to prove what was received by appellant on the contract secured by the efforts and labor of appellee, in order to enable the jury to arrive at a verdict as to what appellee was entitled to.

"The compensation to be made in such cases is, by the ordinary judgment of business men, measured by the results obtained. It is not limited by the time occupied or the labor bestowed." Forsyth v. Doolittle, 120 U.S. 73-78, 7 S.Ct. 408, 30 L.Ed. 586. See, also, Morgan v. Keller, 194 Mo. 663, 92 S.W. 77; Glover v. Henderson, 120 Mo. 367, 41 Am. St. Rep. 695, 25 S.W. 178.

Where an assignment of error is not argued in appellant's brief it will not be considered by the supreme court. Bail v. Hartman, 9 Ariz. 321, 83 P. 358.

The supreme court cannot consider or review any error which would be cause for a new trial, unless a motion therefor, upon that ground, has been made to the court below, and the ruling properly assigned as error. This has been settled for all time by the supreme court of Arizona in the following cases: Putnam v. Putnam, 3 Ariz. 182, 24 P. 320; Santa Rita etc. Co. v. Mercer, 3 Ariz. 181, 73 P. 398; Tietjen v. Snead, 3 Ariz. 195, 24 P. 324; Koons v. Ariz. Co., 3 Ariz. 204, 32 P. 266; Miller v. Green, 3 Ariz. 205, 73 P. 399; Albuquerque Nat. Bank v. Stewart, 3 Ariz. 293, 30 P. 303; Evans v. Glencross, 4 Ariz. 222, 36 P. 212; Providence etc. Co. v. Marks, 7 Ariz. 74, 60 P. 938; Roy & Titcomb v. Flin, 10 Ariz. 80, 85 P. 725.

"The appellate court will not grant a new trial on the ground that the verdict is contrary to the evidence, when the testimony is conflicting, and there is any evidence to support the verdict." Goldman v. Sotelo, 7 Ariz. 23, 60 P. 696; Old Dominion etc. Co. v. Andrews, 6 Ariz. 205, 56 P. 969; Miller v. Green, 3 Ariz. 205, 73 P. 399; Barter v. County of Pima, 2 Ariz. 88, 11 P. 62; McGowan v. Sullivan, 5 Ariz. 334, 52 P. 986.

OPINION

LEWIS, J.

-- This was an action commenced by the plaintiff and appellee, D. J. Brislin, against the defendant and appellant, Felix Mayhew, to recover for services rendered by the plaintiff as middleman in effecting an optional contract of sale of certain mining properties in Yuma county, Arizona. A verdict in the sum of $2,000 was rendered against the defendant, upon which verdict judgment was duly entered. A motion for new trial was made, which was denied, and thereupon this appeal was taken.

The first and second assignments of error criticise the following rulings of the trial court: "Q. Now, Mr. Brislin, . . . what did you understand by his (the defendant's) remark to you at that time and place as you have testified to 'that he would make it all right with you'? (The defendant objects to the question as irrelevant and immaterial.) The Court: I think it would be competent for the witness to state what he understood by it. It would be a matter for the jury to determine what the meaning was. I overrule the objection. Counsel: The defendant excepts to the ruling of the court. My objection is that it asks for a conclusion, and that it is incompetent and immaterial. A. My understanding was that I was to get the usual commission on the purchase price of the property. (The defendant moves the court to strike out the answer of the witness to the preceding question.) The Court: I deny the motion." The rulings of the trial court are correct. Wigmore says: "Nevertheless, for two reasons it is usually necessary to inquire what the 'understanding' of each party was: First, because it may appear that both gave the same sense to the words, and thus no conflict will exist and the common sense may be accepted and enforced; and, secondly, because, if there is a conflict, the different senses must be examined. It thus appears that we must discriminate between enforcing the private 'understanding' of one party, and receiving evidence of such a private 'understanding.' Rulings of exclusions will usually or often mean in reality, not that the evidence should not be listened to, but that the private 'understanding' will not be enforced." Wigmore on Evidence (1904), sec. 1971, subd. "a." This statement is applicable to the rulings here presented. The record disclosed that the appellant and appellee were friends, and that the appellee was not engaged regularly in the brokerage business. The expression used by the appellant "that he would make it all right with him" was not free from ambiguity. It might be a mere expression of generous intent or a definite promise of payment for services rendered. Hence it was proper that the private understanding of the promisee should be placed before the jury, not for the purpose of enforcing such understanding, but for the purpose of aiding the jury in determining the sense in which the words were used, and in finding whether the parties came to an agreement in accord with the private understanding of the appellee.

The third assignment of error is as to the ruling of the trial court admitting in evidence the complaint, together with the contracts annexed thereto. It is argued by appellant that the plaintiff had fulfilled his contract of employment prior to the making of said contracts and that they were incompetent and immaterial. The complaint alleges that the contract of employment required the plaintiff to act as a middleman for the purpose of negotiating a mining deal between the said defendant and R. K. Humphrey and Charles H. Fay upon terms and conditions to be fixed by said defendant, and that said defendant agreed to pay the plaintiff a reasonable compensation for said services. It further alleges the performance of the contract by the plaintiff, and that a "deal" was effected in the manner and form set forth in certain contracts, copies of which were attached as exhibits thereto. The record shows an expressed exclusion of the objection that the proffered evidence was incompetent, the sole objection being that the evidence was immaterial. These contracts were material to show an essential element of the plaintiff's case, namely, that a "deal" was effected. They related to the same deal, and the later contracts were but modifications of the earlier and informal memoranda of the agreement.

The fourth assignment of error relates to alleged error in admitting evidence that certain amounts of money had been paid on the purchase price of the mining claims subsequent to the giving of the option and to the commencement of the action. The rulings of the trial court upon the admission of the evidence complained of were made while the plaintiff was on his main case. The complaint, in addition to the contract of employment and the various optional contracts hereinabove referred to, alleged that under the said contracts the purchasers had paid $227,500 upon the purchase price of $300,000, and were able, ready, and willing to pay the remainder as the same became due, and that the full purchase price would be paid in accordance with the contract. The only direct evidence as to the contract of employment was that of the plaintiff, who stated "that he was to get the usual commission on the purchase price of the property; that his understanding was that, if the deal fell...