Wilson v. Sewell.

• Decision Date: 31 July 1946
• Docket Number: No. 4928.,4928.
• Citation: 50 N.M. 121,171 P.2d 647
• Parties: WILSONv.SEWELL.
• Court: New Mexico Supreme Court

50 N.M. 121

171 P.2d 647

WILSON

v.SEWELL.

No. 4928.

Supreme Court of New Mexico.

July 31, 1946.

Appeal from District Court, Colfax County; J. S. Compton, Judge.

Action by Earl Wilson against Rufus Sewell to recover broker's commission for sale of land. Judgment for plaintiff, and defendant appeals.

Judgment affirmed and cause remanded with directions.

Broker was entitled to commission on sale of realty to purchaser tendered by him, though at price below that at which realty was listed with broker, where owner himself took over negotiations and within a few days and without consulting broker made sale at such reduced price.

[171 P.2d 647 , 50 N.M. 123]

A. J. Krehbiel, of Clayton, for appellant.

O. P. Easterwood, of Clayton, for appellee.

LUJAN, Justice.

Plaintiff (appellee) brought this action against defendant (appellant) on an oral contract. Appellee alleged that he was retained by appellant as a commission agent to sell or to procure a buyer for a ranch belonging to appellant; that he found a purchaser, a sale was made, but that appellant refused to pay the agreed commission of $2,000.

It is the contention of appellee that appellant listed with him, a broker, for sale or the procurement of a purchaser, a certain ranch, for a consideration of $45,000, agreeing to pay $2,000 as broker's commission if appellee either sold or procured a buyer for the ranch at the price aforesaid. He further contends that he did procure a purchaser and that appellant sold the ranch to him at a reduced price. Appellant claims appellee never performed the contract on his part and hence did not earn the agreed commission; that he was not the procuring cause of the sale, and that the contract was a special one for the payment of $2,000 only in the event appellee sold the ranch for $45,000.

The case was tried by the court without a jury and judgment was entered in favor of appellee for the sum of $2,000, together with interest thereon from date and costs. Appellant, seemingly not satisfied with the judgment, prosecutes this appeal.

The trial court made the following findings of fact and conclusions of law, and denied those requested by the parties which were in conflict therewith:

‘1. That the plaintiff is a resident of Amarillo, Texas, and that the defendant is a resident of the State of New Mexico.

‘2. That heretofore, in the month of February, 1944, the defendant listed with the plaintiff at Amarillo, Texas, a certain ranch in Union County, New Mexico, then owned by the defendant and consisting of approximately 17 sections of deeded and leased land, and then agreeing to pay a commission of $2,000.00 for his services in the sale of said land.

‘3. That plaintiff has never held a realtor's license in the State of New Mexico, but continuously for a considerable number of years, and now is, a licensed realtor in the State of Texas.

‘4. That shortly after the listing of said land with the plaintiff by the defendant, the plaintiff found a purchaser for said land, one Rufus Wright, who purchased same for his son Ralph Wright.

‘5. That plaintiff was the procuring cause of the sale of said land by the defendant to the said Rufus Wright, for his son Ralph Wright, and that by reason thereof he is entitled to a commission $2000.00.'

The court concluded as a matter of law that the plaintiff is entitled to judgment against the defendant for the sum of $2,000, with interest thereon from date until paid, at the rate of 6% per annum.

Appellant, in this court, for the first time challenges the sufficiency of the complaint to state a cause of action, and also contends that there is a fatal variance between the theory of the case pleaded and litigated upon trial and that adopted by the court.

If this contention were true, no advantage was taken of it before the trial court. Appellant having answered and gone to trial on the complaint, and all questions necessary to a complete determination of this cause having been litigated, and upon such issues evidence having been introduced by both parties, and no objection to evidence made on account of a defective complaint, the district court and this court will treat the same as sufficiently amended to support the judgment. Springer v. Wasson, 25 N.M. 379, 183 P. 398; State Bank of Commerce v. Western Union Telegraph Co., 19 N.M. 211, 222, 142 P. 156, L.R.A.1915A, 120.

While the complaint is not one to be recommended as a precedent to be hereafter followed, nevertheless, in view of the fact that no objection, either as to its form or substance was made in the court below, we are of the opinion that it is sufficient to support the judgment based upon it. It is true that the objection that the complaint does no state a cause of action may be successfully made for the first time on appeal, but the appellate court will not be over zealous to find a defect in the complaint that the appellant himself failed to discover until the case had been decided against him on its merits. We think the defects in the complaint, as well as the variance complained of, are no longer available to appellant since he permitted evidence which supports an amendment after judgment to go in without pointing out the defects now challenged. In Western Union Telegraph Company v. Longwill, 5 N.M. 308, 21 P. 339, 340, we said: ‘* * * We think it sufficient to say that there appears to have been no demurrer, either general or special, to the declaration. Nor was there any objction made to the introduction of evidence, because there was no averment in the declaration under which evidence of plaintiff's damages could be received. While the statement in the declaration is in very general terms, it will be deemed good after verdict and judgment, when left unchallenged by the ordinary modes of reaching a formal insufficiency or uncertainty.'

Applying the foregoing principles we hold that the complaint was sufficient to support the...