Sterling v. Radford , 126 Wash. 372 ( 1923 )

Tolman, J.

— Respondents, as plaintiffs, brought this action to recover a brokers’ commission for procuring a tenant for an apartment house building. From a judgment as prayed for, the defendant has appealed.

It is admitted that the prospective tenant was first interviewed, and shown the plans of the building to be erected and leased, by another broker, and the case turns upon the question of whether or not these prior negotiations were broken off before respondents intervened and interested the same person, who finally executed the lease. The testimony which was received is conflicting upon this point, but after a careful consideration, we cannot say'that it preponderates against the trial court’s findings.

This leaves for consideration as the- only other material point raised, the question of whether or not the court erred by rejecting evidence that should have been received. For a proper understanding of this question, some portions of the facts must be stated.

One Nellie Brownlow, who afterwards became the lessee, appears to have been in the market for such a lease, and this fact was apparently known to both brokers interested in the transaction. She was first approached by the broker Molluer, who showed her the plans and told her the terms, both of which appeared to have been satisfactory to her. She was informed by Molluer that, if she leased, she would have to pay him a commission, and she testified that she refused absolutely to proceed on such terms, and that the negotiations were then completely broken off. Molluer as positively denies that the negotiations were broken off, or even interrupted, though he admits the matter of the payment of the commission was in dispute.

Within a few days after the time when, áccording to Mrs. Brownlow’s testimony, the negotiations through Molluer ceased, respondent Sterling approached Mrs. Brownlow with the same proposition, except that he informed her that his commission would be paid by the lessor, and she would be called upon to pay nothing on that account. She thereupon indicated her desire to enter into the lease, and she, with Sterling, went to appellant’s office to consummate the transaction. They were sent by appellant to John Davis Company, the general agent in charge of the whole matter, and John Davis Company refused to recognize Mrs. Brownlow, then or at any subsequent time, as respondent’s client, because Molluer had theretofore reported that he had interviewed her, and that she was interested and probably would take the lease..

Thereafter, by abandoning any claim to a commission from her, Molluer succeeded in having Mrs. Brownlow execute the lease. Respondents tendered their further services throughout the transaction, and at its close demanded a commission. That demand being refused, they brought this action. On the trial below, Mrs. Brownlow, having testified as hereinbefore indicated, on cross-examination further testified, without objection, that, when the lease was executed, she informed appellant, the general agent, and all those then present, that she thought respondents were entitled to the commission, informing them that because Molluer had demanded a commission from her, the negotiations with him had terminated before respondents undertook to interest her. This testimony appears to have been the opposite of the answer counsel expected to his preceding question, and he thereupon asked:

“Don’t you remember saying at the time in the presence of these parties that Mr. Molluer was entitled to the commission because he was the party who first put the deal up to you?”

An objection was sustained to this question, and offers to prove that the witness had so stated were after-wards made, and, upon objection, refused.

The controlling question of whether the negotiations through Molluer had been terminated was an exceedingly close one asserted by one witness and denied by the other. As affecting the value of Mrs. Brownlow’s assertion, a statement made by her at .about the same time, when she had full and recent knowledge of all the facts, and under the circumstances here shown, which, unless further explained, would indicate that the negotiations through Molluer were never broken off, and terminated only with the execution of the lease, would seem to have some weight, and we think evidence thereof should have been received and considered, not for the purpose of eliciting the opinion of the witness as to who had earned the commission, as her opinion on that subject is immaterial, but as tending to discredit her statement that the negotiations through Molluer had terminated. The two statements (if there were two) are in their final effect inconsis-' tent.

“As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done. On a comparison of the two utterances, are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent beliefs? . . .

“The inconsistency may be found expressed, not in words, but in conduct indicating a different belief.” 2 "Wigmore on Evidence, p. 1208, § 1040.

The rejected offers indicate a possibility of statements showing an inconsistency as so defined. We think this principle has been recognized by this court in French v. Seattle Traction Co., 26 Wash. 264, 66 Pac. 404; Sound Timber Co. v. Danaher Lumber Co., 112 Wash. 314, 192 Pac. 941; and State v. Fluhart, 123 Wash. 175, 212 Pac. 245.

Because of the errors indicated, a new trial must he granted.

Beversed and remanded with instructions to grant a new trial.

Main, O. J., Fullerton, Pemberton, and Parker, JJ., concur.