
    Cornell v. Morrison.
    
      Motion by defendant to arrest cause from jury — And enter judgment of dismissal of plaintiff’s petition — Made after opening statement of counsel for plaintiff — If statement leaves no disputed question of fact — But only one of law for court — Duty of court to withdraw case from jury, when- — Court procedure.
    
    1. A motion by the defendant to arrest a cause from the jury and enter a judgment of dismissal of plaintiff’s petition and for costs, made after the opening statement of counsel for the plaintiff and before the introduction of any evidence, is an admission by the defendant, for the purpose of the motion, of the truth of all the statements that the plaintiff proposes to- establish by the evidence, leaving no disputed question of fact to be determined by the jury, the only remaining question being one of law for the court.
    2. Where it appears from the record that counsel for plaintiff, in the statement of the case to the jury, stated in detail all the evidence that plaintiff proposed to offer in support of the allegations in his petition, and where it further appears that after the sufficiency of his statement was challenged, he was given full and fair opportunity to explain and qualify his statement, and make such additions thereto as, in his opinion, the proofs at his command would establish, and with such explanation and qualification as counsel desire to make it is still apparent that the facts proposed to be proven would not sustain the essential averments of the petition and would not authorize a verdict and judgment for plaintiff, it is the duty of the trial court to sustain a motion to withdraw the case from the jury and enter a judgment dismissing plaintiff’s petition and for costs.
    (No. 13099
    Decided December 17, 1912.)
    Error to the Circuit Court of Franklin county.
    On the 1st day of May, 1909, Frank L. Cornell filed his petition in the common pleas court of Franklin county, against Andrew Morrison, seeking to recover two per cent, commission on $80,000, the purchase price of certain real estate sold by Morrison to Julius F. Stone, averring among other things that he had procured a purchaser for Morrison under an agreement with him that he should do so, and that while the commission to be paid him was not specifically agreed upon, the ordinary, reasonable and customary commission would be 2 per cent, of the purchase, price.
    To this petition the defendant filed an answer, admitting the sale and transfer of the property to Julius F. Stone, but denying all the other averments in plaintiff’s petition.
    On the 5th day of April, 1910, this case came on to be tried in the common pleas court of Franklin county and a jury was impaneled and sworn, and thereupon counsel for the respective parties stated the case to the jury. After this statement had been made, it appearing to the court that counsel for plaintiff had not in his opening statement offered to prove sufficient facts to sustain a verdict and judgment for plaintiff, the court requested counsel for plaintiff to re-state to the court and jury what facts he expected the evidence to establish in support of the allegations of plaintiff’s petition. And thereupon, counsel for plaintiff made the following statement:
    Mr. Bates: “We expect the evidence to show that in December, 1908, Mr. Cornell, upon learning that the property belonging to Mr. Morrison was for sale, went to Mr. Morrison’s house and asked for the right to act as agent and find a purchaser, and that Mr. Morrison told him at that time that there was an option on this land which would not expire until January 1 — the first of the following month; that if they did not take the property he would just as leave Mr. Cornell would have it for sale as any other person; that subsequently Mr. Cornell saw Mr. Morrison and had a conversation with him after the first of January, 1909, in which he asked him if the option had been enforced or the property sold under the option, which he said, ‘No/ — Mr. Morrison said ‘No/ and Mr. Cornell told him he had persons to whom he thought he could sell the property — they would take it.
    “We expect the evidence to show Mr. Morrison asked him who they were, and he told him if he would tell him how much the other people were to pay, or something to that effect. The information was exchanged, and Mr. Cornell told the defendant that it was Park and Stone; those persons at the bank on Town and High Street, the Central National Bank; I do not know whether it had been then named the Central National Bank, but it has been changed from the Central Savings Bank to the Central National Bank.
    “We expect the evidence to show that Mr. Morrison then went to the bank and met Mr. Stone there and entered into transactions of business with him, by virtue of which the forty-five acre tract was sold to Stone, Park and others, composing The Eastwood Realty Company; that the deed was nominally taken in the name of Julius F. Stone, who acted as agent for The Eastwood Realty Company, which was composed of Stone, Park and others.
    “We expect the evidence to show that the property was immediately transferred to The Eastwood Realty Company by Stone a short time after it was transferred to Stone by Morrison, and that the property was sold for the sum of $80,000.
    “We expect the evidence to show that Mr. Cornell requested payment of Mr. Morrison his commission at the rate of 2 per cent., or $1,600, which he refused.”
    The Court: “Have you stated all that you expect to claim, that plaintiff did in respect to this sale?”
    Mr. Bates: “We expect the evidence to show, if the court please, that plaintiff did procure the purchaser; that while he did not take Mr. Morrison in person to them, that he procured purchasers after he knew it would be possible for him to sell, after he had had the first conversation with Mr. Morrison; that he saw Mr. Park at the Central National Bank, or elsewhere, and secured from him an offer on the property; a willingness to become a purchaser and an ability to purchase, as the evidence will show; that he afterwards did purchase and that Mr. Cornell is the person who procured The Eastwood Realty Company through Park and Stone as the purchasers, and that by his information to Mr. Morrison, the purchasers and vendor were brought together in that manner at the Central National Bank under the contract between Morrison and Cornell, the option or the employment, whatever it may be termed.”
    
      Counsel for defendant thereupon stated its case to the jury, but shortly after doing so, moved the court to enter up judgment for the defendant on the plaintiff’s own statement. This motion was sustained and the case withdrawn from the jury and the petition of plaintiff dismissed with costs.
    Error was then prosecuted to the circuit court of Franklin county and that court affirmed the judgment of the common pleas court. This proceeding in error is now prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the circuit court affirming the same.
    
      Mr. Ray S. Bates, for plaintiff in error.
    In the very nature of the case this motion for non-suit should and must be treated as a general demurrer; for the reason that counsel made the reading of the petition a part of his statement of the case to the court and jurors. If the petition is good, the statement could not be fatal. Our contention is the petition states a cause of action, and for that reason the court erred in entering a non-suit; but should have allowed the jury to hear and consider the evidence.
    If this petition properly could have been held insufficient on this motion, as upon demurrer, the plaintiff should have been allowed to amend. And, therefore, as to the supplemental motion for leave to amend, we claim it should have been sustained, for the reason the plaintiff was taken by surprise. Bliss v. Long, Wright, 352.
    
      Plaintiff in error apparently has a meritorious cause of action; and he has never had his day in court. By denying" him a hearing upon the merits, the trial court has .committed reversible error. One of plaintiffs fundamental constitutional rights has been violated. Section 16, Article I, Constitution.
    
      Messrs. Pugh & Pugh, for defendant in error.
    The situation was exactly the same, in effect, as if counsel had offered his evidence, and his evidence had not sustained the allegations of his petition, or had not been sufficient to make a case of any sort against the defendant, and non-suit had thereupon been sustained. So that it is not a question of whether the petition "was demurrable or not.
    If the opening statement of counsel for the plaintiff in the court below was tantamount to an admission that plaintiff had no case, the court had the power to direct a verdict. Pietsch v. Pietsch, 245 Ill., 454; Lusk v. Throop, 189 Ill., 127; Fisher v. Fisher, 5 Wis., 472; Haley v. Western Transit Co., 76 Wis., 344.
    The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. Oscanyan v. Arms Co., 103 U. S., 261; Lindley v. A. T. & S. F. Rd. Co., 47 Kans, 432, 28 Pac. Rep., 201; Emmerson v. Weeks, 58 Cal., 382.
    To the same effect is the case of Stewart v. Hamilton, 3 Rob. (26 N. Y. Super.), 672.
    
      This court has never decided the question explicitly. There is, however, an allusion' to the rule in Cin. Gas & Elec. Co. v. Archdeacon, Admr., 80 Ohio St., 38.
    There should have been a contract by which the defendant employed the plaintiff to procure a purchaser. Castner v. Richardson, 18 Col., 346, 33 Pac. Rep., 163; Pierce v. Thomas, 4 E. D. Smith (N. Y.), 354; McVicar v. Roche, 77 N. Y. Supp., 501.
    The unauthorized acts of the plaintiff in procuring purchasers were not ratified by the defendant afterwards selling the property to those persons. Loving Co. v. Hesperian Cattle Co., 176 Mo., 330, 75 S. W. Rep., 1095.
    What we claim here is that the opening statement of counsel for the plaintiff was an admission that no contract had ever been made between his client, the plaintiff, and the defendant, by which the latter employed the former to act as his agent to find a purchaser for his land. If' this be the proper interpretation of his opening statement, then the trial court was under obligations to direct a verdict for the defendant.
   Donahue, J.

The important question presented by this record is whether a trial court is authorized to withdraw a cause from the jury and enter a judgment of non-suit upon the statement of counsel as to what plaintiff expects to prove in support of the allegations of his petition. This question, in its exact form, has never been adjudicated in this state, but there are many cases bearing upon the principle involved, particularly the case of Cin. Gas & Elec. Co. v. Archdeacon, Admr., 80 Ohio St., page 27. In the opinion at page 38, it is said: “When the facts are conclusively determined in a manner not affected by any error, nothing remains to be done but to apply the law to those facts, and that application is a function of the court. And this is true at whatever stage of the progress of a case, or in whatever manner the material facts may be thus conclusively established, whether it be by the statements of counsel, made for the purposes of the trial, or by failure of the party upon whom the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support, or by the concurrent testimony of all the witnesses, or by an agreed statement of facts, or by a special verdict, or by answers of juries to interrogatories.”

In the case of Lindley v. A. T. & S. F. Rd. Co., 47 Kans., 432, it was held that: “Where the plaintiff, in making the opening statement of his case to the court and jury, admits or states facts the existence of which absolutely precludes a recovery by him, the court may close the trial at once and give judgment against him.”

In the case of Emmerson v. Weeks, 58 Cal., 382, this language is used: “It would be much better not to non-suit on an opening statement, unless it is clearly made and it is plainly evident therefrom that no case can be made out.”

While it is certainly true that a court should exercise great caution in summarily disposing of a case upon the statement of counsel, yet that it has the right and authority to do so in a proper case, cannot be doubted. Otherwise the time of the court and jury would be wasted to no purpose, for the result, if the evidence were introduced, must necessarily be the same. It is perhaps true that counsel, in stating his case, may inadvertently overlook some important facts that he is required to establish by the evidence, and for that reason, after the sufficiency of his statement has been challenged, he should then be given full and fair opportunity to explain and qualify his statement and make such additions thereto as, in his opinion, the proofs at his command will establish. But when counsel has covered in detail all of the matters and things he proposes to offer in support of the essential averments of his petition, and he has been given such opportunity to explain and qualify his statement and make any proper additions thereto, and it still appears that such facts, if established by the evidence, would not sustain the averments of the petition and would not authorize verdict and judgment in favor of the plaintiff, it is not only the right but the duty of the court to act and prevent the unnecessary delay of a long and tedious trial and the waste of the time of the court and jury, that should be given to other litigation. Such a motion on the part of the defendant is an admission, for the purposes of the motion, that the facts proposed to be proven by plaintiff are true, and, therefore, it is in substance and effect, for the purposes of the motion, an agreed statement of facts.

The only duty of a jury is to determine disputed questions of fact, and when facts are admitted, the function of the jury is ended, and the proper judgment to be entered upon the facts so established by the admission of the parties, involves only a question of law for the court.

In the case of Gas Co. v. Archdeacon, Admr., supra, the third paragraph of the syllabus is as follows: “Though issues joined in a case are triable to a jury, when the facts are conclusively determined in a manner not affected by material error, the application of the law to such facts is a function of the court, and its exercise, when properly invoked, becomes a duty.”

In the case of Oscanyan v. Winchester Repeating Arms Co., 103 U. S., 263-264, it was held that: “The.power of the court to act in the disposition of a trial upon facts conceded by counsel, is as plain as its power to act upon the evidence produced. * * * Counsel should be allowed to explain and qualify his statement, so far as truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give such direction as will dispose of the action.”

The second question presented by this record is whether the common pleas court erred in holding that the facts that the plaintiff proposed to establish by the evidence would not, if so established, sustain the essential averments of his petition, and support a verdict and judgment for plaintiff.

It is claimed in the brief of counsel for plaintiff in error that the petition was read in the opening statement and that, as the petition states a cause of action, therefore, his statement was sufficient. It does not appear from the bill of exceptions that the petition was read, but that fact does appear from the entry in the common pleas court, of the date of July 14, 1910. There is no contention here made that the averments of the petition are not sufficient,- but on the contrary the claim is that the evidence the plaintiff proposed to offer would not sustain the averments of this petition. The petition avers a valid contract. The plaintiff offered to prove, in support of this averment, certain conversations had between himself and Mr. Morrison to show that there was an express, or at least an implied, contract that the plaintiff should act as the agent for defendant in the sale of this property, and these conversations counsel for plaintiff stated in detail, and the motion to withdraw the cause from the jury admits that these conversations were had in manner and form as claimed for them by counsel for plaintiff. The first of these conversations, touching the sale of this property, was in December, 1908, and the substance of it, as stated by counsel, is that plaintiff asked defendant to permit him to act as his agent and find a purchaser for his real estate. Defendant told him that there was then an option on the land which would not expire until the first of the following'month. That “if the property did not sell under this option he would just as leave Mr. Cornell would have it for sale as any other person.” That is the whole extent of the first conversation and all that counsel claimed for it, and that certainly does not amount to a contract. The next conversation was in January following, and in that conversation plaintiff asked if the property had sold under the option. Defendant said “No.” Plaintiff told him he had persons to whom he thought he could sell the property; they would take it. Defendant asked him who they were, and thereupon proposed to plaintiff that if “he would tell him who these prospective purchasers were, he would tell plaintiff how much the other people were to pay, or something to that effect.” Thereupon, plaintiff accepted the proposition tendered him by defendant and told him the names of the prospective purchasers. So far as statement of counsel is concerned, that is all there was of that conversation. Clearly the only contract it tends to prove is a contract that defendant would tell plaintiff the purchase price named in the option if plaintiff would tell him the names of his prospective purchasers.

Instead of tending to prove that defendant either expressly or impliedly agreed that plaintiff should act as his agent in the sale of this property, the fair construction of the language used by the defendant directly negatives such intention on his part, for, instead of agreeing to appoint him as his agent for the sale of this property, he made an entirely different proposition, and that was that he would exchange certain information that he possessed, for information that plaintiff possessed, touching possible purchasers.

These two conversations were the only ones, and all that plaintiff proposed to prove in support of the averment of his petition that a valid contract of agency for the sale of this real estate had been made between Mr. Morrison, as owner, and Mr. Cornell, as agent, and, admitting that counsel for plaintiff truly stated these conversations in detail, they fall far short of establishing such a contract.

It is true that proofs of other facts are tendered in connection with these conversations, that might g-o to show that Mr. Morrison had acted in bad faith and availed himself of the information he received from Mr. Cornell, contrary to the intention and expectation of Mr. Cornell, and had thereby secured an unfair advantage; but, even if that were conceded, it would not avail the plaintiff anything in the present state' of the pleadings. However, there were no limitations placed upon Mr. Morrison as to the use he should make of this information. He had a right to stand upon the proposition that he made to Mr. Cornell, and that proposition was that he would tell Cornell the purchase price named in the option that had just expired, if he, Cornell, would tell him the names of the purchasers he had in view. Mr. Cornell accepted that proposition and gave him that information, and there is no claim but that Mr. Morrison then furnished Mr. Cornell the information that he had agreed to give him. While the contract for such exchange of information may have been a very unprofitable one for Mr. Cornell, yet that was for his consideration at the time he made it, and he cannot now be heard to complain of the transaction. If Mr. Morrison had asked him for the names of these purchasers without any further explanation or any further statement as to what he would do for Mr. Cornell in return for such information, it might very properly be said that the fact of his asking for the information which was valuable to him, was an acceptance of the terms upon which Mr. Cornell had proposed to give it to him, i. e., as his agent for the sale of this real estate, with the understanding and expectation of being paid a commission therefor. But, when he qualifies his request for the information by saying to him, in effect, you give me this information and I will give }^ou other information in my possession in exchange therefor, it necessarily excludes the idea that he had accepted the proposition made by Mr. Cornell to act as his agent, and Mr. Cornell ought ■ to have so understood it. It leaves no question for the jury whatever. The language is plain and unequivocal and is not subject to the construction contended for by counsel for plaintiff in error. Plaintiff in error was required to prove by the preponderance of the evidence the averments of his petition that there was a contract, either express or implied. It is clear that there was no such express contract, and it is equally clear that the language used by Mr. Morrison directly refutes the claim that' there was an implied contract of the kind and character pleaded in the petition, but on the contrary that there was an express contract of a very different nature.

The judgment of the circuit court affirming the judgment of the common pleas court is affirmed.

Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and O’Hara, JJ., concur.  