I dissent from the proposition that plaintiff’s order for examination should be set aside because it does not seek to obtain evidence material to the trial of the action against defendant.
- The sérvices claimed to have been performed by plaihtiff for defendant were in the formation of a copper company to take over certain mining properties owned by defendant and in the disposal of the- stock of such company.
The plaintiff by his affidavit alleges that the defendant transferred the .stock of the company which plaintiff had helped to form and the mining properties which he had helped to market and which were supposed to be deeded to it to another company for a very large sum of money, the amount plaintiff does not know and cannot ascertain from any source aside from the defendant.
If plaintiff performed services in relation to and gave advice respecting, a property of magnitude he would have a right on the trial of this action to recover the value of his services, to prove that fact, as bearing upon the reasonableness of his charges. If his services and advice related to a large transaction they would manifestly be worth more than if they related to a small one. The advice of a lawyer as to the transfer of a $100,000,000 railway corporation would be of greater value than respecting a' $100 .horse" trade. *723So plaintiff’s services as a promoter would be worth more if-they related to a $3,000,000 mining property than if they related to one worth $300. Plaintiff has no' knowledge of the sum for which defendant sold the properties which he helped put upon the market, and he has no means of obtaining that knowledge except by an examination of the defendant.
It is not a proper interpretation of plaintiff’s affidavit to say that he only desires to examine the defendant as to the profits which he himself made. On the contrary, what he does desire is to examine the defendant as to the amount of the sale for the purpose of showing the magnitude of the transaction. This evidence is most pertinent to plaintiff on the trial of the action. If the trial court should exclude evidence showing the magnitude and character of the transaction, this court would instantly reverse the judgment because of such erroneous ruling.
If the examination of adverse parties before trial is to be permitted respecting material matters peculiarly within the knowledge of the opposite party, the ■ present order was right and should be affirmed so far as it relates, at least, to the disposition of the mining properties and of the stock of the Somers Copper Company and the price obtained therefor, and the general terms of the agreement of transfer.
Order reversed, with ten dollars costs and disbursements and motion granted, with ten dollars costs.