
    [No. 11006.
    Department Two.
    July 18, 1913.]
    Gerard-Fillio Company, Incorporated, Respondent, v. James McNair et al., Appellants.
      
    
    Brokers — Actions—Issues and Proof — Judgment. In an action upon a written contract for a broker’s commission, where the contract sued on was admitted and defendants’ affirmative defense of a subsequent'modification was not sustained, it is error for the court to grant judgment for the amount it considers reasonable for the services rendered, rather than for the specific sum agreed upon.
    Cross-appeals from a judgment of the superior court for King county, Everett Smith, J., entered September 7, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.
    Reversed on plaintiff’s appeal.
    
      Kerr :<$p McCord, for appellants.
    
      Hamlin <§■ Meier, for respondent.
    
      
       Reported in 133 Pac. 462.
    
   Morris, J.

— The respondent brought this action to recover six hundred dollars claimed by it to be the balance due upon a commission for bringing about an exchange of properties between appellants and third parties.

The facts are set forth in detail in Gerard-Fillio Co. v. McNair, 68 Wash. 321, 123 Pac. 462, where we were called upon to review a judgment granted respondent upon the pleadings. That judgment was reversed with instructions to the lower court to proceed with the trial, the court holding that appellants were entitled to put in their proof and to a judgment in their favor, if sustaining the allegations of their affirmative answer pleading a subsequent partly performed oral modification of the original written contract. Under this direction, the case has been tried, the court awarded respondent a judgment for four hundred dollars, and both parties appealed.

The original contract being admitted, it is evident that there was only one issue before the court, and that was as indicated by this court in its opinion on the first appeal, the modification of the written contract by subsequent oral agreement which had been partly performed. The lower court in its findings of fact expressly holds and finds, “That the said defendants have failed to prove their affirmative defenses pleaded herein.” Having so found, nothing remained for the lower court but to enter judgment for respondent as prayed for under the terms of the original written contract. As it was evident from the issues as framed, either respondent was entitled to judgment as prayed for under the original contract, or appellants were entitled to the benefit of the subsequent modification pleaded. The lower court however, adopted a new theory, and gave judgment for the sum he believed represented a fair commission to respondent for the services rendered referring to an attempted adjustment of the differences between the parties in which the appellants expressed a willingness to pay respondent six hundred dollars, making the balance now due four hundred dollars. Believing this sum to be a proper compensation for respondent, judgment was granted accordingly.

Both parties complain of this judgment, appellants contending the court was in error in awarding judgment in any sum upon the theory that they had sustained the affirmative defenses, and respondent contending that, under its findings, the court should have awarded it judgment for six hundred dollars. There was but one issue before the court. The respondent was entitled to judgment of six hundred dollars or nothing. There is no theory known to the law under , which the judgment granted can be sustained. When a litigant comes into court pleading a specific contract as his right of recovery, there is no question of equity as between the parties submitted to the court. Such litigant must rely on the contract pleaded or not at all. The court cannot make a new contract or substitute its opinion of values for that expressed in the contract. The contract being admitted, and the court finding that the appellants had failed in their plea of a subsequent modification, it should have been enforced and judgr ment granted accordingly. Not to do so was error.

We believe the court was right in its finding that the affirmative defenses had not been sustained. It only remains to direct the proper judgment. The judgment is reversed and set aside and the cause remanded with instructions to the lower court to enter judgment for respondent in the sum of $600.

Ellis, Main, and Fullerton, JJ., concur.  