Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Orvis Speciali and Mack & Green, for Appellants.
LeRoy F. Pike and Roy W. Stoddard, for Respondent.
By the Court, Sanders, J.:
This action was brought by W. H. Campbell, plaintiff, to recover from the defendants a real estate brokerage commission, alleged to have been earned by the plaintiff in finding a purchaser for the defendants' ranch, and personal property thereon, situate in Pleasant Valley, Washoe County, Nevada.
The trial court conformed its findings to the facts alleged in the complaint, and found in the language of the complaint that the defendants were owners of the property; that in the latter part of February, 1917, the defendant, Joe Vanetti, for himself and his cotenant, Angelo Capuro, entered into a certain agreement and contract with the plaintiff, conditioned that, if the plaintiff would find a buyer for the property, the defendants would pay to the plaintiff 5 per cent commission on the sale price of the said property for and in consideration of his services; that thereafter, on or about the 8th day of May, 1917, the plaintiff took one L. A. L. Green to the property, where he introduced Green to the defendants, the said Green stating that he desired to purchase a ranch; that Green, in the presence of the defendants, inspected the ranch and entered into negotiations with the defendants to purchase the same; that thereafter, on the 24th of November, 1917, Green purchased the property for the price of $23,250; and that thereafter
the plaintiff demanded of the defendant Vanetti that the defendants pay to him, under the terms of the contract, 5 per cent of the sale price of the ranch and personal property, to wit, $1,162.50.
As a conclusion of law the court found that the plaintiff was entitled to recover from the defendants the said sum and his costs of suit. Upon these findings the court rendered judgment in favor of the plaintiff and against defendants for said sum. From the judgment and an order denying to the defendants a new trial the defendants prosecute this appeal.
This action is upon a special contract of employment, oral it is true, but clear and definite in its terms, and the respective rights and obligations of the parties should have been decided by the terms of the agreement and appropriate rules of law applied to the particular facts.
The finding that the defendant, Joe Vanetti, entered into an agreement or contract with the plaintiff, conditioned that if the plaintiff would find a buyer for the defendants' ranch and personal property thereon the defendants would pay to the plaintiff, in consideration of his services, 5 per cent commission on the sale price, is not sustained by the evidence. The only evidence in support of this finding is the plaintiff's understanding of his rights under or flowing from the contract and his acts and conduct indicative of such understanding, but the contract as proved furnishes not foundation for his understanding. The evidence of the plaintiff, testifying as a witness in his own behalf, shows that he was employed to find a buyer for the property at a stated price of $24,000, and it was agreed that for this service he should be paid 5 per cent commission on the sale price of the property. The court, in effect, found that the contract was one of a general employment of the plaintiff to find a purchaser at any price and that the defendants promised to pay 5 per cent commission on the sale price, whatever it might be. This was not the contract.
There being an essential difference between the express contract declared on and that proved, the defendants'
exception to the refusal of their motion for a new trial is sustained, and the cause is remanded to the ...