Williams v. Nelson

• Decision Date: 11 December 1914
• Docket Number: 2679
• Citation: 45 Utah 255,145 P. 39
• Court: Utah Supreme Court
• Parties: WILLIAMS v. NELSON

145 P. 39

45 Utah 255

WILLIAMS v. NELSON

No. 2679

Supreme Court of Utah

December 11, 1914

Appeal from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by D. J. Williams against Joseph Nelson.

Judgment for defendant. Plaintiff appeals.

REVERSED and remanded with directions.

Chris Mathison for appellant.

Young Snow, Ashton & Young for respondent.

FRICK J. McCARTY, C. J., and STRAUP, J., concurring.

OPINION

FRICK, J.

The plaintiff commenced this action to recover a commission or compensation for services rendered which he alleges resulted in the sale of certain mining property owned by the defendant. The complaint contains what is contended constitutes three "causes of action." In the so-called first cause of action, it is in substance alleged that on April 23, 1903, the defendant was the owner of certain mining claims located in Salt Lake County, fully describing them; that on or about the 30th day of April, 1903, the defendant employed the plaintiff to sell said mining claims "and agreed to pay the plaintiff a commission of ten per cent. for the sale thereof"-- that is, ten per cent. of the sale price, which "was to be paid to this plaintiff by the defendant when said sale was made"; that pursuant to said agreement the plaintiff showed said property to prospective purchasers, and at times opened negotiations with different parties for the sale thereof. What was done in that regard by plaintiff is fully set forth. It is further alleged "that by reason of plaintiff's continuous efforts, explanations, illustrations, and representations to Jos. E. Edmunds of the advantages and values of said mining property, the said Jos. E. Edmunds did, on the 6th day of December, 1906, pay to Joseph Nelson (the defendant) the sum of $ 50,000, and did therewith purchase from the defendant all of said mining property." It is further alleged "that said mining property was sold through the efforts of plaintiff, and that said plaintiff was the procuring cause of said sale." It is then alleged that ten per cent. is the regular commission, and "that plaintiff's services rendered during and between the dates named in reference to the sale of this property were reasonably worth $ 5,000, and that ten per cent. of the sale price is justly due and owing to the plaintiff in this action." It is then alleged that payment of said commission was demanded and refused. For the purpose of avoiding the plea that the action was barred, it was also alleged, in appropriate terms, that a prior action upon the same cause of action had been timely commenced, but had failed otherwise than upon the merits. Judgment for $ 5,000 was prayed for in the first alleged cause of action. The plaintiff then proceeded to state what is termed a second cause of action, in which the dates respecting the employment, the ownership, and description of the mining claims are precisely as alleged in the first cause of action. The only difference between the so-called first and second causes of action is that in the alleged second cause of action it is stated that the defendant employed the plaintiff "to assist the defendant in selling the mining properties mentioned herein and to do and perform services for the defendant in finding a purchaser therefor, and the defendant agreed to pay the plaintiff for said services ten per cent. of the price for which said property might be sold," which ten per cent., it is alleged, was payable when the sale was made, "whether said sale was perfected through the efforts of this plaintiff alone, or through the efforts of the defendant, or whether said sale was perfected by the joint efforts and labors of both plaintiff and defendant." What plaintiff did by way of procuring a purchaser for said mining claims is again fully set forth, and the date of the sale, the amount of the purchase price, and the person to whom sold are alleged in substantially the same terms as in the alleged first cause of action. The bringing of a prior action is also again stated, and judgment prayed for the same as in the preceding cause of action. Practically the same allegations are again repeated in what is denominated a third cause of action. To these several causes the defendant filed an answer in which he admitted that he was the owner of the mining claims at the date alleged, and denied generally all other allegations of the complaint. He also averred that the alleged causes of action were barred. A separate answer was directed to each one of the alleged causes of action.

The case was tried to the court without a jury. Plaintiff, in substance, testified that he was well acquainted with the mining claims in question; that at one time he was a stockholder in a corporation which owned them; that in April, 1903, he had a conversation with the defendant; that the defendant then stated to the plaintiff that he, the defendant, was not familiar with the mining business and wanted plaintiff to help sell the mining claims in question and get them off defendant's hands; that the defendant, addressing plaintiff, said, "You have lost, of course, on it (the mining claims) and you can be reimbursed partly by helping me sell this property, and now," he said to me, "Dave, will you take hold of it and do the best you can, and we will both try and sell it, and, if successful, I am going to give you a commission; I will pay you a reasonable commission." The witness further testified that the defendant, in substance, said to him that whenever the property was sold the plaintiff would be paid ten per cent. commission out of the property for whatever services he rendered. "He [meaning defendant] stated it this way: That he wanted me to help him in various ways, and I would get nothing for my services until the property was sold." The witness said that he had several conversations with the defendant from time to time in which the latter substantially made the same promises and statements as we have just outlined. He further testified that, pursuant to these conversations, he made efforts to sell the property, and, for that purpose, showed it to various prospective purchasers by taking them to and over the property; that he in particular labored with Jos. E. Edmunds to purchase the same, who thereafter purchased it from the defendant. The plaintiff stated in detail what he did in order to bring about the sale. Plaintiff's statements were, to some extent at least, supported by another witness, who testified that he and a Mr. Evans were prospective purchasers; that the defendant introduced the witness to the plaintiff, and that he "gave me the impression" that the plaintiff was acting as defendant's agent in selling the property; that the defendant said that plaintiff would show the property to the witness, and the plaintiff did take the witness and Mr. Evans to the property and showed it to them; that terms of sale were discussed by the parties, but they could not agree upon a price. The plaintiff introduced in evidence a warranty deed for the mining claims in question from the defendant and wife to Jos. E. Edmunds which was executed December 6, 1906, and in which the expressed consideration was $ 50,000. Plaintiff also testified that before bringing the action he had demanded the commission from the defendant, and that the latter refused to pay the same. The complaint in the prior action was also introduced in evidence.

In substance, the foregoing is all the evidence that was produced. When the plaintiff rested, defendant's counsel moved the court to require plaintiff to elect on which "cause of action" he would rely for a recovery. Plaintiff's counsel objected to this, but was compelled to elect, and did elect to stand upon what is termed the second cause of action in the complaint. When counsel had elected to stand on the second cause of action, counsel for defendant moved for non-suit, upon the ground that it was made to appear that the cause of action upon which plaintiff had elected to stand was barred by the statute of limitations. Counsel for defendant contended, and now contends, that the second cause of action in the complaint was not saved by the prior action, for the reason that it is a separate and distinct cause of action, and is different in its nature and legal effect from the cause of action which was set forth in the prior action.

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