Ross v. Carr

• Court: New Mexico Supreme Court
• Writing for the Court: MILLS, C.J. (after stating the facts as above).
• Citation: Ross v. Carr, 15 N.M. 17, 103 P. 307, 1909 -NMSC- 4 (N.M. 1909)
• Decision Date: 12 January 1909
• Parties: ROSS v. CARR et al.

103 P. 307

15 N.M. 17, 1909 -NMSC- 004

ROSS v. CARR et al.

Supreme Court of New Mexico

January 12, 1909

Syllabus by the Court.

As the sixth paragraph of the amended complaint sets up the making of a written contract, that such contract was extended, and that the defendants authorized the plaintiff to continue his efforts and negotiations for a sale of the land, and that he did so continue them with the result that a sale was made, it sets up a cause of action, and the court properly overruled the demurrer to this paragraph of the amended complaint.

The court properly denied the motion made by the defendants that the plaintiff elect on which count of the amended complaint he would go to trial, for both counts set up but one cause of action, varying only the form of the statement of the action so as to have them meet any state of proofs; and, when a plaintiff is in real doubt as to his relief, he has the right to set forth his cause of action in several counts.

There was no error in the refusal of the court to grant a continuance of the case when the plaintiff amended his complaint by increasing the ad damnum clause. The granting of a continuance rests in the sound discretion of the court, and in the case at bar that discretion was not abused, and in any event the defendants were not damaged, as the jury only returned a verdict for the amount of damages asked by plaintiff, before the ad damnum clause was increased.

The contract with Ross for the sale of the lands being a joint contract, a joint judgment against all of the defendants was proper.

There was no error in the admission by the court of evidence as to transactions with Clark M. Carr prior to December 8, 1905 for the amended complaint sets out that in June, 1904 plaintiff was employed by defendants to procure purchasers for the lands, and that such work was continued until April 1906, when the lands were sold, for the evidence objected to goes to prove the transactions between June, 1904, and December 8, 1905.

No error was committed by the court in excluding the admission of Wirtz and the deposition of Gordon, as to Ross being entitled to a share of his (Wirtz's) commission, for, as Ross was a middleman and did not act as a broker, he was entitled to receive compensation from both the buyer and the seller.

The court properly excluded evidence that plaintiff had entered into an agreement with outside parties who had supplied him with money to give them a part of the commission which he might receive for services performed in the sale of the lands.

There was no error committed by the court in excluding that part of the evidence of E. L. Medler as to conversations he had had with Ross concerning the timber contract of the Zuni Mountain Lumber Company, as the substance of the excluded testimony was that Ross had never spoken to him (Medler) of the sale or assignment of the timber contract to Wirtz or others.

Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.

Action by Michael A. Ross against Clark M. Carr and others. Judgment for plaintiff, and defendants appeal. Affirmed.

The court properly denied the motion made by the defendants that the plaintiff elect on which count of the amended complaint he would go to trial, for both counts set up but one cause of action, varying only the form of the statement of the action, so as to have them meet any state of proofs; and, when a plaintiff is in real doubt as to his relief, he has the right to set forth his cause of action in several counts.

On September 7, 1906, Michael A. Ross filed a suit in the district court of Bernalillo county to recover from the defendants the sum of $6,750 as compensation or commission for the sale of certain timber lands situated in the Second judicial district of this territory. Eugene A. Carr, one of the defendants, being a nonresident, an attachment was sued out against him and service was had by publication. On February 19, 1907, an amended complaint was filed by the plaintiff, which contained two alleged causes of action. The first count of this amended complaint was a repitition of the cause of action set up in the original complaint, and the second cause of action is upon a special contract in writing. Clark M. Carr and the Zuni Mountain Lumber & Trading Company filed a joint answer which sets up a general denial. Eugene A. Carr answered specially, and his answer sets up three separate defenses, besides a general denial, to wit: That the options had expired by December 8, 1905, when the option to J. J. Wirtz was executed, and that neither Wirtz nor his associates availed themselves of the option. That the option of December 8, 1905, was given upon the express understanding that the plaintiff was to sell the land to J. J. Wirtz and his associates and no others. That, after the expiration of the Wirtz option, defendant was negotiating with other purchasers, of which plaintiff had notice. The answer further alleges that after the option of December 8, 1905, had expired and Wirtz and his associates had failed to avail themselves of its terms, and had abandoned the purchase, Wirtz, acting as a broker, procured three persons to purchase the lands, and that Wirtz was paid a commission of $1,000 for his services, and that plaintiff was acting as agent and representative of Wirtz or as a copartner, and that he was to obtain a commission or profit from Wirtz. The second defense is that the plaintiff was the agent or broker of the purchasers to whom the defendants sold the land, and was acting for them in and about the sale of the land. The third defense alleges upon information and belief that the plaintiff made a contract with J. E. Saint and C. M. Foraker, by which they were entitled to one-third interest in any commission upon a sale of timber lands in the territory of New Mexico. The reply denied all the new matter set up in the answer of Eugene A. Carr, and alleged that, if any agreement was made with Foraker and Saint, it was only an agreement to pay certain proportional parts of the commissions to them after the same were collected and received by the plaintiff. A demurrer to the amended complaint was interposed and overruled. Trial was had before a jury which returned a verdict in favor of plaintiff for the sum of $6,750, and the attachment proceedings against Eugene A. Carr were also sustained. Motion for a new trial was argued and overruled, and from the joint judgment against all of the defendants this appeal has been taken.

E. L. Medler, for appellants.

O. N. Marron (Wm. B. Childers, on the brief), for appellee.

MILLS, C.J. (after stating the facts as above).

1. The first error assigned is that the trial court committed error in overruling the demurrer interposed by the defendants to the sixth paragraph of the amended complaint. This paragraph of the amended complaint is the one that sets up the second cause of action. Briefly, we may say that this paragraph set out appellee's original employment and by whom employed, the subject-matter of the employment, and the price for which the property was to be sold, with the further allegation that, although the time limited for the consummation of the sale had expired, the contract was extended, and that defendants "authorized the said plaintiff to continue his negotiations and efforts which he was so making as aforesaid," with a further allegation that the time was continued, and the allegation that thereafter one J. J. Wirtz obtained an option to purchase the same land, and further allegation that appellee continued his negotiations "through the said Wirtz and under the said option, and brought to the said defendants his proposed purchasers for said lands, Gordon, McFarlane, and Garvin, who were associates of Wirtz," and further alleging that these negotiations were continued up to the month of April, 1906, when the lands were sold to these parties through the efforts and negotiations of appellee. The price for which they were sold is also set out. It also sets out that all of these things were done with the full knowledge of the defendants that the plaintiff was still endeavoring to procure purchasers for said lands, which finally resulted in the sale being made, and that the services of the appellee were reasonably worth 5 per cent. of the purchase money received by the defendants for the sale of said lands. Paragraph 6 of the amended complaint is, of course, set out at much greater length than we have set it out above. It does allege the making of a written contract, that the contract was extended, and that the defendants authorized the plaintiff to continue his efforts and negotiations for a sale, and that he did so continue them, with the result that finally the lands were sold. We are of the opinion that paragraph 6 of the amended complaint sets out a cause of action, and that the court below would have committed error if it had sustained the demurrer, without giving Ross the opportunity to substantiate by proofs the allegations contained in it. The court below committed no error in overruling the demurrer interposed by the defendants to the sixth paragraph of the amended complaint.

2. An examination of the record discloses that immediately after the jury was selected and sworn, and before any evidence had been introduced, the attorney for the defendants moved that the plaintiff elect on which of the two causes of action set out in the amended complaint he would proceed, and upon the court's overruling this motion, and allowing the plaintiff to proceed on both causes of action, the second assignment of error is predicated. The amended complaint does contain but one cause of action, but it is set out in two different ways. The first five paragraphs, after setting out the names of the...