PARKE & LACY COMPANY, Respondent, v. SAN FRANCISCO BRIDGE COMPANY, Appellant, 145 Cal. 534

McFARLAND, J. This is an action to recover of defendant seventeen hundred and fifty dollars, alleged to be the balance due of a commission of five per cent on seventy thousand dollars, arising out of the written contract between plaintiff and defendant set out in the complaint. Judgment went for plaintiff as prayed for; and from the judgment and the order denying a motion for a new trial the defendant appeals. Bach party is a corporation. The written contract above mentioned was executed on the twenty-fourth day of April, 1896.

It recites that plaintiff, “party of the first part,” through its agents, Richardson & Kelton, in Guatemala, has been acting as agent for the defendant, “party of the second part,” to secure to the latter a contract with the government of Guatemala for furnishing a hydraulic dredge, and also a contract for the dredging in whole or in part of the harbor of Istapa for said government, and that said contracts are likely to be awarded to the party of the second part.

The contract then proceeds as follows:— “Now therefore: In consideration of the services already rendered by the party of the first part, and such further services as it may render in the matter, and for other good and valuable consideration, the party of the second part hereby agrees that in the event that the said contracts, or either of them, are awarded to the party of the second part, either direct or through any other person or contractor, it, the said party of the second part, will pay unto the party of the first part a sum equal to five (5) per centum of the total gross moneys received by the party of the second part on account of said contract or contracts.

Said payments to be made to the party of the first part as payments are made to the party of the second part, and are to be in full compensation to the party of the first part for its time, trouble and expense in respect to the said contracts. “The party of the first part agrees to continue in its efforts to secure the said contracts for the party of the second part, and to do everything in its power towards this end. ’ ’ It is then averred in the complaint that the said contracts were awarded to defendant by the government of Guatemala on or about the twenty-ninth day of July, 1896; that defendant has received on. said contracts the sum of seventy thousand dollars, and had paid one half of the said five per centum thereon,—to wit, seventeen hundred and fifty dollars,— and no more, and has refused to pay any of the balance thereon; and judgment is prayed for the seventeen hundred and fifty dollars remaining unpaid.

The court found these averments to be true, and rendered judgment for the plaintiff for the balance of seventeen hundred and fifty dollars; and the evidence amply supports the findings.

The answer contains an averment that the agreement of plaintiff was to influence the officers of the government of Guatemala corruptly, or in some improper way, and it seems to be contended by appellant that on account of this contemplated improper influencing of said officers the contract was void as being against public policy; but the court found that this averment was not true, and the finding is fully justified by the evidence.

Appellant contends for a reversal of the judgment upon the ground of the insufficiency of the complaint, because, as is claimed, there is no averment that after the execution of the written contract on June 24, 1896, respondent complied with its agreement to “continue in its efforts to secure the said contract.” It is doubtful if such an averment was necessary, considering the fact that, after what respondent had already done, it was to receive the five per centum if the contract should be secured, “either direct or through any other person or contractor.” But, at all events, the case was tried as if the fact of the continued efforts of respondent was at issue, and appellant introduced a considerable amount of evidence tending to show that respondent had not done anything of value toward securing the contract from the government of Guatemala after the date of the contract between appellant and respondent of April 24th.

There was no demurrer to the complaint. There was an objection made by appellant to a letter offered in evidence by respondent, because it was dated after April 24, 1896; but that was in rebuttal, and after the appellant itself had introduced evidence tending to show that respondent had done nothing after that date. We think that as to this point the case is within the rule cited in numerous decisions, that when a case had been tried on the theory that a certain issue was before the court, the point that the issue had not been properly presented in the pleadings will not be heard on appeal.

There was no error in admitting certain correspondence between respondent, who resided in San Francisco, and its agents, Richardson & Kelton, at Guatemala. Appellant had introduced evidence to the point that respondent had done nothing in the matter of procuring contracts from Guatemala; and the ruling of the court was, that the letters were admissible not as evidence of the truth of their contents, but merely as acts tending to refute the evidence of appellant that respondent had done nothing about the matter of procuring the contracts.

Moreover, these letters were shown to appellant, and answers from respondent to its agents at Guatemala were in great part dictated by appellant. This correspondence both before and after the twenty-fourth day of April was admissible; for in the answer it was denied that there was any consideration whatever for the contract, and appellant’s evidence had been to the point that respondent had not done anything in the premises either before or after the date of the contract.

For the same reason it was not error to admit testimony that other letters were written pertaining to the dredging contract, although the letters themselves were not formally introduced. They were in court subject to appellant's inspection.

There was no prejudicial error in sustaining respondent’s objection to the general'question asked by appellant of a witness, whether the appellant ever received “any consideration for the agreement of April 24, 1896.” The witness had already testified that the respondent had not paid or given appellant anything either before or at the time of said agreement ; and there was no pretense by respondent that there was any consideration for the contract other than its alleged services in procuring the dredging contracts from Guatemala.

Therefore, the only question before the court touching the consideration was as to respondent’s said services; and each party had full opportunity to present its evidence on that issue, and the appellant could not have been prejudiced by the ruling. Appellant contends that even if respondent rendered any services before the execution of the written contract of April 24th, they were past services, and did not furnish any consideration for appellant’s promise to pay in the future five per centum of the moneys which should be received from Guatemala; but we do not think that this contention is maintainable.

It goes upon the theory that a past executed consideration will not support any promise different from that which the law implies—which is a promise to pay in prcesenti, on request, and that an executed consideration will not support a promise to pay in futuro. Whatever may be said of this rather abstruse doctrine, it is not applicable to the case at bar.

Here, as appears from the testimony, it was not expected that the respondent was to receive any compensation unless the dredging contracts were secured; and by the contract of April 24th the parties merely put into a permanent written form what they then finally agreed upon as to the future contingent compensation. There are no other points calling for special notice, and we see no reason for reversing the judgment or the order denying a new trial. The judgment and order appealed from are affirmed. Lorigan, J., and Henshaw, J., concurred. A rehearing in Bank was denied January 4, 1905, upon which Beatty, C.

J., rendered the following dissenting opinion:—