Concurring. — This action was commenced by appellee, as plaintiff, against appellant, as defendant, seeking to recover a sum equal to 10 per cent of an amount of money received by appellant from one Apollos Fuller on an optional sale of appellant’s mines to Fuller, alleging that appellee procured and induced the making of such optional sale pursuant to a verbal agreement entered into with appellant on or about the twenty-eighth day of July, 1912; and, that by the terms of such verbal contract appellant promised, in consideration that appellee would procure such a purchaser, it would pay appellee said commission at said rate upon all payments made by such purchaser as and at the dates when paid. The appellee alleges performance on his part by procuring a purchaser to whom an optional sale was made, payment of a part of the purchase money by the optional purchaser, to appellant, alleging the amount of such payments is unknown to plaintiff, alleging demand of payment of his commission and a failure to pay to him. These facts setting forth a cause of action upon the verbal contract appear in the mass of evidentiary matters appearing in the complaint, and no other cause of action is therein stated.
*156The defendant answered, denying the making of the verbal contract in express terms, then admitted the making of the optional agreement with Fuller, and receiving about $30,000 from him as payment on the purchase price of the mines, denied that Fuller was appellee’s customer, and alleged that Fuller was a customer of another firm of brokers, Greenidge & Dugan, who induced Fuller to purchase the property, and denied its liability to appellee.
In the nature of an answer to a petition of Greenidge and Dugan, styling their appearance as interveners, defendant admits the execution by it of a written contract to pay said parties a commission of 10 per cent for their services “in procuring a purchaser for said properties”; and admits that Fuller did on the twenty-first day of October, 1912, purchase optionally the properties mentioned, and paid of the purchase price $30,000 as the first installment, “but defendant is not positive that the said interveners did procure a purchaser .for said properties, to wit, Apollos Fuller, and therefore denies same.” Defendant admits that it paid said interveners 10 per cent of the $30,000 paid by Fuller, viz., $3,000 and no more, and admits that other sums may become due to them in case other installments should be paid by Fuller.
Then answering both the complaint and the petition in intervention, defendant admits the sale of the mines to Fuller and payment by Fuller of the said $30,000 and alleges:
“That the defendant is indebted either to the plaintiff or the interveners, in the sum of three thousand dollars ($3,000.00), being 10 per cent of the thirty thousand dollars paid by said Apollos Fuller, purchaser, to this defendant as a commission and will become indebted and liable to pay to either the plaintiff or the interveners in this case 10 per cent of the said sum of five hundred seventy thousand dollars to be paid by the said Apollos Fuller to this defendant as the balance of the purchase price of the said properties . . . when the said payments become due, and are paid by the said Apollos Fuller to this defendant. That this defendant is not in possession of sufficient information or evidence to determine whether the plaintiff, Geo. E. Hemphill or tbe interveners, . . or which of them, did procure the purchaser, to wit, Apollos Fuller, for said properties, and for lack of information, denies that either of the said parties, plaintiff or *157interveners, procured and induced Apollos Fuller ... to purchase the properties. , . . That the defendant is now ready and willing to pay the said commission to either the plaintiff George E. Hemphill, or the interveners, ... as the same may become due and payable under the terms of said option, and upon the judgment of this court. ’ ’
Defendant prays that the court adjudge and decree and determine to which of the adverse claimants the defendant pay the commission.
The interveners set forth their claim to the commission alleging their superior right thereto, and denying plaintiff's right to the same, basing their right to the commission upon a written contract with defendant and its performance upon their part and praying for a judgment for $57,000 to be paid •to them as the purchase price is paid.
Upon this state of the pleadings the cause was tried to a jury and the jury rendered a verdict for the plaintiff, and judgment was rendered in favor of the plaintiff against the defendant, and another judgment was rendered in favor of the defendant and against the interveners. This appeal is from the judgment against the defendant and in favor of the plaintiff. No appeal is prosecuted by the interveners, and ■that judgment is not before us. The only issue for trial as made by the pleadings is found in the question: To whom did the defendant become liable to pay the commission, having admitted its liability to one? Defendant admitted in effect the making by it of a contract for commission with both the plaintiff and with the interveners; admitted that the sale resulted from the efforts of one of said parties, and admitted that it was liable to the party through whose efforts the sale was brought about. The contest was not between the defendant and either of the other parties, the plaintiff or the interveners, but the real contest was between the plaintiff and the interveners, and the question contested by them was which party brought about the sale and earned the commission. Clearly, the original parties departed from the original cause of action 'between the plaintiff and the defendant, viz., from the action on a verbal contract, after taking issue on the fact of whether plaintiff performed the contract. Defendant thereupon not denying that the contract was in effect performed, but alleging that defendant was uncertain whether *158plaintiff’s contract, or another contract of the like import was performed by others, and thereby shifted the burden from its shoulders to be maintained by the third party not a party to the case as originally commenced, and assumed the relation of stakeholder to the parties.
The third party, the'interveners, voluntarily assumed the burden, to which plaintiff assented so far as the record discloses, and thereafter the suit became a contest between the plaintiff and the interveners, with the defendant standing by ready to perform the orders of the court, with no further interest in the case. Such became the relation of the parties among themselves.
Paragraph 1603 of the Civil Code of Arizona of 1913, provides that:
“A defendant, against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, . . . and the court may, in its discretion, make the order.
“And whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to, compel them to interplead and litigate their several claims among themselves. The order of substitution may be made and the action of interpleader may be maintained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another.”
Here the conflicting claims are made on the defendant, and it has informally caused the adverse claimants to come before the court. The so-called interveners came voluntarily and answered without notice. Every substantial feature of inter-pleader is present in this case and the adverse claimants have informally asserted their adverse rights. No demurrer was *159filed by anyone to defendant’s pleading, and formal defects therein, if any existed, were waived. 23 Cyc. 28.
The appellant from its pleading had nor has no interest in the subject matter of the suit, as it was contested by the adverse claimants upon the trial, and therefore its appeal must be dismissed. 2 Cyc. 628, and authorities cited in note 48.
It is the duty of this court to review the record on the theory upon which the case was tried in the lower court, as the parties cannot elect to try their causes on one theory in the lower court and, when defeated on that line, assume a different position in the appellate court. 3 Cyc. 243, and cases cited in note 46.
For these reasons it is my opinion that this appeal should be dismissed and cause thereby the judgment appealed from to become final as rendered.
As to when a broker is procuring cause of sale when several brokers are employed, see notes in 44 L. R. A. 337; 23 L. R. A. (N. S.) 164; 27 L. R. A. (N. S.) 195.
On performance of a contract by a real estate broker to find a purchaser or effect an exchange of his principals’ property, see note in 44 L. R. A. 593.