Orr v. Schwager & Nettleton, Inc.

• Decision Date: 08 August 1913
• Citation: 74 Wash. 631,134 P. 501
• Court: Washington Supreme Court
• Parties: ORR v. SCHWAGER & NETTLETON, Inc.

134 P. 501

74 Wash. 631

ORR v. SCHWAGER & NETTLETON, Inc.

Supreme Court of Washington

August 8, 1913

Department 1. Appeal from Superior Court, King County; Wilmon Tucker Special Judge.

Action by H. E. Orr against Schwager & Nettleton, Incorporated. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Dudley G. Wooten, of Seattle, for appellant.

Bausman & Kelleher, of Seattle, for respondent.

MOUNT J.

This action was commenced by the plaintiff in May, 1909, to recover a commission on the sale of certain shares of stock owned by John W. Edgecomb and wife and W. A. McDonald and wife in the Riverside Timber Company, a corporation. Plaintiff alleged that in November, 1908, the owners of the stock agreed to pay him a commission of 3 per cent. upon the selling price for his services in finding a purchaser; that he found a purchaser, and that a sale was made by the owners some time in January, 1909, for the sum of $235,000; that the amount of his commission was $7,050; that all the agreements in relation thereto were oral. In that action John W. Edgecomb and wife and W. A. McDonald and wife, and Schwager & Nettleton, a corporation, were made parties defendant. The cause was not brought on for trial until July 1912. In the meantime the complaint was twice amended. In the second amended complaint, Schwager & Nettleton, a corporation, was the only defendant; the other defendants having been eliminated by amendments. In the complaint upon which the trial was had, in addition to the facts alleged in the first complaint, it was alleged that the defendant Schwager & Nettleton, Inc., agreed to pay the commissions due the plaintiff as a part of the consideration for the purchase of the stock; that plaintiff thereupon released Edgecomb and McDonald from the payment of said commission; that the defendant thereby became indebted to the plaintiff in the sum of $7,050. The cause came on for trial before a special judge pro tempore without a jury. After the plaintiff's evidence was submitted, the defendant moved the court for a nonsuit upon the grounds that the evidence showed no liability against the defendant, that there was no contract entered into between the plaintiff and the defendant, and that the plaintiff had failed to support his cause of action as alleged in the complaint. The trial court sustained this motion and dismissed the action. The plaintiff has appealed.

At the close of the appellant's evidence he called as a witness Mr. Louis Schwager, one of the principal stockholders in the defendant corporation. He testified, in substance, that the Schwager & Nettleton corporation did not purchase the stock of the Riverside Timber Company, but that he and Mr Nettleton and one or two others purchased the stock individually; that the Schwager & Nettleton corporation was not interested in the purchase. Appellant thereupon asked for a continuance of the cause until proofs could be obtained to contradict the witness. This request was denied. After a judgment of nonsuit had been entered, appellant filed a motion for new trial upon the ground of surprise, claiming in substance, that the witness Mr. Schwager, after the purchase of the stock, had represented to certain commercial agencies that the stock was the property of Schwager & Nettleton, Inc.; and that appellant was not prepared at the time of the trial to show these facts; that it was newly discovered evidence. The court denied this motion. Appellant argues that the court erred in denying the motion for a continuance and in denying the motion for new trial. The answer of the respondent to the complaint was a general denial, so that the appellant was put upon his proof as to all the facts alleged in the complaint. It was necessary for the appellant to prove that the corporation of Schwager & Nettleton had assumed the obligation to pay the commission upon the sale of the stock. A party is not entitled to a new trial simply because he was surprised by testimony falling within the issues of the case, and especially where, as here, the appellant calls one of the opposing parties to prove his case. He must not be surprised when the opposite party testifies substantially as he has pleaded. 'Ordinarily, the pleadings must determine what issues will be tried; and it has never seemed to be the practice that a party must disclose to his adversary what his testimony will be, or that he must suggest testimony for his adversary.' McDougall v. Walling, 21 Wash....