Mattingly v. Pennie

Citations

• 105 Cal. 514
• 39 P. 200
• 1895 Cal. LEXIS 685

Syllabus

<p>Appeal—Law of Case—Question of Fact—Question not Decided.—A decision upon a former appeal as to a question of fact does not become the law of the case upon a second appeal, and a point presented upon a second appeal which is not the same as that decided upon a former appeal cannot be concluded by the former decision; nor will the application of the doctrine of the law of the case be extended beyond the cases in which it has hitherto been held to apply.</p> <p>Broker’s Commissions—Procuring or Purchaser.—Under a contract authorizing a broker to negotiate a sale of mining stocks for three hundred thousand dollars, and to receive as his commission all that he could obtain for the stock above that price, in order to entitle the broker to recover commissions where no sale was actually consummated, it is incumbent on him to prove that he found a purchaser ready, willing, and able to buy the property on the terms fixed, and either that he procured from that person a valid contract binding him to purchase the property on those terms, or that he brought the vendor and the proposed purchaser together, so that the vendor might have secured such contract if he desired.</p> <p>Id.—Statute of Fraud.—A contract for the sale of mining stocks for a sum not less than three hundred thousand dollars is within the statute of frauds, and must be in writing, if the purchaser has not received any part of the stock, or paid any part of the price.</p> <p>Id.—Verbal Offer to Purchase—Insufficient Evidence.—Evidence showing that plaintiff, within the time limited by the contract, found a person in London who offered verbally to purchase the stock for four hundred and twenty-five thousand dollars, and communicated that fact to the owner of the stock without naming or pointing out the purchaser, whereupon the owner refused to make the sale, and no contract was obtained from the supposed purchaser binding him in any way, is not sufficient to justify a verdict for the recovery of commissions by