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purpose, nor during any other period of time, nor has said. exchange yet been consummated by the parties to said deal," and that the failure to consummate it was not due to any fault of appellant's intestate, but that he was always "ready and anxious" to carry out the arrangement. It is also alleged that the failure to consummate the deal was occasioned by the fact that the respondent made certain misrepresentations to the parties on the other side, the misrepresentations having to do with the matter of the value of and the income derived from his principal's property. The allegation that the exchange was not consummated within thirty days arose from the fact that there was a provision in the commission contract to the effect that it was to be consummated within that time; but that allegation, as well as the allegation that it was never consummated at any time, negatived nothing in the respondent's pleading, for respondent does not contend that the deal ever went through, and it is his theory of the case that he is entitled to a commission because he brought the parties together, the other side, as he alleges, having at all times been ready, able, and willing to make the exchange. The allegation of the answer that the failure to consummate the exchange was not due to any fault of appellant's intestate and that he was at all times desirous of carrying it out, is a plain allegation of new matter, as there was no averment upon the subject in plaintiff's pleading. The statement of the answer that the deal fell through because of misrepresentations made by the respondent is of course not responsive to anything in respondent's pleading. It is plain, then, that the affirmative allegations in the answer did not amount to a traverse of anything averred by respondent in his pleading.

The contract upon which the action was based provides, in part, that appellant's intestate "agrees to pay E. C. Turner a commission . . . on account of above exchange; said exchange to be consummated on or before thirty days from date first above written." As already remarked, the respondent does not contend that the deal ever was completed. He claims that the commission was earned when he presented to his principal the parties on the other side, one Brown and one Anderson, and by his principal having entered into an agreement with them for the exchange, within the thirty days limited in the commission agreement, which

the record shows he did. The appellant insists, however, that the deal could have been consummated, in the sense intended by the commission agreement, only by the passing of deeds between the parties, and that, therefore, no commission was earned. Our courts have long adhered to the rule that a broker who contracts to sell has earned his commission when he has presented to his principal one who is ready, able, and willing to buy (Phelps v. Prusch, 83 Cal. 626, [23 Pac. 1111]; Purcell v. Firth, 175 Cal. 746, [167 Pac. 379]); and in the latter case the commission was to have been paid, under the written agreement between the parties, when the sale was "consummated." The only dif ference, then, between that case and this lies in the fact that in the one the broker was to be paid upon the consummation of a sale, while in the other he was to be paid upon the consummation of an exchange; which, to our minds, is, in legal effect, no difference at all. The exchange was consummated to the extent that such a result could have been brought about by the respondent. The parties principal on both sides had entered into an agreement for the exchange, and over the performance of the terms of that agreement he could exercise no control. All the services he could have performed in the premises were completely rendered and his commission was earned.

Upon the issue as to whether the failure to complete the deal between the principals was because of misrepresentations made by the respondent to Brown and Anderson, the trial court found with the respondent. The appellant contends that the finding lacks support in the evidence, but the contention is untenable. It is enough to say, without making a more detailed statement of the evidence, that, first, the respondent never had any dealings with Anderson in the matter of the proposed exchange; and, second, if it be conceded for the purpose of the argument that misrepresentation was made by the respondent to Brown, the latter testified that the statements were not ascertained to be incorrect until "after the deal was turned down."

In his opening points and authorities A. T. Roark, the counsel for the appellant, quotes language as coming from a certain reported case, but it is found only in the brief of the party unsuccessful on the appeal which is there decided; he cites two cases to a proposition of law stated within

quotation marks, the language not being found in the report of the case first cited and being stated in a dissenting opinion in the report of the second; he cites four cases to a statement within quotation marks and the quoted language is found in none of them; he quotes from the opinion in another case, but omits from his quotation an important clause found in the opinion, and without indicating the omission in any way; he quotes certain language as being in the case last mentioned when it is not to be found in the opinion, and he later commits the same offense as to another reported case. Counsel for the respondent calls attention in his points and authorities to all these derelictions, and, in addition, specifies two or three other faults of the same character. We have not examined into these latter charges because of the length of the reports of the cases in which they are involved. In his reply points and authorities Mr. Roark has only this to say upon the subject which now interests us: "Respondent, after offering a great variety of criticisms to citations of law quoted by appellant bearing on the point as to what constitutes consummation of a real estate broker's contract, was charitable enough to concede that the laws of the states of Maryland and Georgia, dealing with contracts of this character, support appellant's contention." The amazement with which we view the conduct of Mr. Roark in the matter of the erroneous citations and quotations in his points and authorities is heightened by the cavalier manner in which he seeks to dismiss the subject. If, in fact, these misquotations were no more than the result. of gross carelessness, he should have admitted the facts, with an apology and a suggestion of any excuse that he might have for committing such errors. Nothing less was due to the court, which is entitled to rely upon counsel for a true statement of the language contained in quoted decisions. He has left himself in a very poor position to urge the charge made in his reply brief, that opposing counsel has pursued a certain course in framing his argument, "for the purpose of confusing this court."

The judgment is affirmed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 2121. Second Appellate District.-March 12, 1918.] B. V. UNWIN, Respondent, v. BARSTOW-SAN ANTONIO OIL COMPANY (a Corporation), Appellant.

ATTORNEY AND CLIENT-WITHDRAWAL OF ATTORNEY-NOTICE TO APPOINT ANOTHER WHEN UNNECESSARY.-Under section 286 of the Code of Civil Procedure, providing that when an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom such attorney was acting, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person, the only object of the notice is to require of a party whose attorney had ceased to act that he appoint a new attorney or appear in the action in person, and where a party serves and files a notice that his attorney has withdrawn from the case, and that he appears in person and without attorney, no notice by the adverse party as provided by the section is essential.

COSTS

TAXING OF KEEPER'S FEES-TIME.-An order fixing the amount of keeper's fees under an attachment made after the cost bill was filed and prior to the determination of the motion to tax is in time.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a motion to tax costs. J. W. Curtis, Judge.

The facts are stated in the opinion of the court.

Fred A. Wilson, for Appellant.

C. C. Haskell, and John A. Hadaller, for Respondent.

WORKS, J., pro tem. This cause is before us on two appeals by the defendant, one being from the judgment and the other from an order denying the defendant's motion to tax the costs in the action.

There is but one point presented on the appeal from the judgment. The first appearance of appellant in the action. was by a demurrer to the complaint, filed in its behalf by an attorney at law. In the due course of procedure in the action the demurrer was overruled and time was allowed to answer. On a certain day thereafter the appellant served and filed a notice to the effect that its attorney had with

drawn from the case. The notice was attached to a document signed by the appellant and by its retiring attorney, which stated that it was "stipulated and agreed" between them that the attorney "may, and he does hereby, withdraw from said action as attorney for said defendant therein, and that the said defendant may, and it does hereby, appear in said action in person and without attorney." In addition to its appearance, thus formally entered by the appellant in person, it did, on the same day serve and file its answer in the action, signed by itself by its resident agent. Thereafter the respondent caused the case to be set down for trial. Upon the date set, the appellant having employed new counsel in the interim, it was objected by him that the court. had no jurisdiction to proceed with the trial on the ground that respondent had not complied with the provisions of section 286 of the Code of Civil Procedure, which provides, "When an attorney dies, or is removed or suspended, or ceases to act as such, a party to an action, for whom he was acting as attorney, must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney, or to appear in person.'

The court overruled the objection, and it is complained that the ruling was erroneous. The contention cannot be sustained. The only object of the notice contemplated by the statute is to require of a party whose attorney has ceased to act that he appoint a new attorney or appear in the action in person. In this case the appellant had voluntarily appeared in person on the same day that respondent had notice. that the attorney had ceased to act. It would be useless, in any situation, and speaking generally, to require one to do a thing which he had already done. The statute, in this instance, does not require the commission of such an act of folly.

On the appeal from the order the question which is presented has to do with the taxing, as costs, of an item of keeper's fees under an attachment. Section 4300b of the Political Code provides that there shall be allowed the sheriff, as keeper's fees, "such sum as the court may fix." The respondent served and filed his cost bill and in it he included a certain sum for keeper's fees. The appellant made its motion to tax the costs specified in the cost bill by

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