delivered the opinion of the court.
The evidence introduced at the trial tends to prove that in the month of October, 1883, and prior thereto, one James Wilcox was the owner of certain cattle, horses, etc., known as the “ J-X ” brand, and that the defendants, Hall Brothers, with one Barela, undertook to sell the same for the sum of $225,000 under a contract with Mr. Wilcox, by the terms of which the' last mentioned parties were to be paid a commission of $8,120 for their services in case of sale.
Hall Brothers and Barela thereupon set about to find purchasers for this property, and soon thereafter met with Scruggs and Deering, of Kansas City, Mo., and brought them out to Colorado to look at the stock. As the result of the examination made Scruggs and Deering were well pleased with the property, but for some reason did not desire to buy the whole of it.. The negotiations were, however, continued, and as a result it was ultimately agreed that Scruggs and Deering *512should each take a one fourth interest in the property, Barela one fourth, and Hall Brothers the remaining one fourth; each purchaser to make a separate and distinct purchase of an undivided interest. The interests were paid for in cash, checks and notes accordingly, neither purchaser assuming any liability beyond that arising from the purchase of the particular interest taken by him. After the sale was consummated and the purchase price paid, Wilcox paid the commission as previously agreed upon ; one half the amount, to wit, $4,060, was paid to Hall Brothers by check, and the balance to Mr. Barela.
Soon thereafter Scruggs, Deering, Barela and Hall Brothers formed a copartnership known as The Trinidad Cattle Company, and transferred their interest in this and other property to such company. About ten months after this transaction the defendant Nathan Hall, acting for Hall Brothers, sold to 11. T. Howard and M. V. Warren the one fourth interest in The Trinidad Cattle Company held by the former. This sale was made at Dodge City, Kansas, aud the evidence shows conclusively that it was not a sale to plaintiff of a one eighth interest and to Howard of a like interest, as claimed by plaintiff, but a sale of one fourth interest to the two jointly. As a consideration for this sale, Warren and Howard agreed to “ discharge all indebtedness of the said Halls, indebtedness of The Trinidad Cattle Company that now stands on the books of said company, and it is further agreed that Howard and Warren will pay back to Hall Brothers all moneys that they have actually expended in the purchase of cattle and lands for the said company, with a profit of eighteen per cent on the same.”
The evidence shows that a portion of the indebtedness mentioned was four promissory notes, aggregating $39,000, executed by Hall Brothers to James Wilcox, as a part of the consideration for the original sale by Wilcox. In pursuance of this contract a part of the notes executed by the defendants Hall Brothers to Wilcox were paid, but on November 18, 1886, there was still due and unpaid on said notes *513the sum of $21,450, principal and interest. Afterwards additional amounts were realized from the sale of certain property mortgaged by Howard to secure the payment of these notes, so that a balance of only $15,464.78 remained unpaid at the time of the institution of this suit. It is further shown by the evidence that defendants Hall Brothers paid this balance in full to Wilcox, and this sum of $15,464.78 is the basis of the judgment entered by the district court upon the cross complaint of defendants.
It is contended here, as in the court below, that under the evidence plaintiff should have been allowed the sum of $4,060, the amount of the commission received by Hall Brothers upon the original sale by Wilcox. The argument in support of this contention is in substance as follows: Under the agreement between Hall Brothers aud Howard and Warren the consideration to be paid by the latter was to be based upon the cost to Hall Brothers, and it is contended that this cost as a matter of fact was not one fourth of the contract price of $225,000, to wit, the sum of $56,250, but such sum less the commission of $4,060 received by Hall Brothers from Wilcox.
We do not think that this contention of plaintiff is well founded. It is admitted that $225,000 was the lowest sum for which Wilcox ever offered the property, although he was willing to pay a commission in case a sale was made. And if plaintiff is entitled to any deduction on account of the commission, it is only for that portion accruing upon the interest which he afterwards purchased jointly with Howard, viz., a one fourth interest. In other words, he would not in any event be entitled to one half of the commission of $8,120 received upon the sale of the whole property, but to only one quarter of the same.
But we are of the opinion that the disallowance of this claim by the district court was proper. Hall Brothers were carrying on business as brokers for the sale of cattle ; as such brokers, with Barela, they presented the property to Scruggs and Deering, brought them to Colorado at their own expense, *514took them where the herds were then grazing for the purpose of making an investigation. If the property had been sold to third parties there can be no doubt that Hall Brothers and Barela would have been entitled to the commission agreed upon, and the fact that Hall Brothers found it necessary to take a one fourth interest in the herd in order that the sale might be consummated, in no manner affected their right to the commission. The evidence shows without contradiction that the total amount of $225,000 was actually paid Wilcox in cash and secured notes, that were satisfactory to him. There is no evidence of any fraud or collusion, and under these circumstances the judgment of the district court in favor of the defendants upon this claim cannot be disturbed.
At the trial the plaintiff objected to any evidence in support of the counterclaim. This objection was based upon the ground that the action of the plaintiff was one arising in tort, while the counterclaim was based entirely upon a contract. The Civil Code of this state provides for two kinds of counterclaims: “ First, a cause of action arising out of the transaction set forth in the complaint or answer, as the foundation of the plaintiff’s claim or defendant’s defense, or connected with the subject of the action. Second, in an action arising upon contract, any other cause of action arising also upon -contract, and existing at the commencement of the action.”
The cause of action' here set out arose out of the transaction set forth in the complaint as the foundation of plaintiff’s claim. This transaction is the agreement made at Dodge City, Kansas, for the sale by Hall Brothers of a one fourth interest in the property to Howard and Warren. It matters not that the plaintiff’s claim is based upon a tort. The counterclaim is for the balance of the purchase price claimed under this sale, and is directly covered by the code provision first above quoted. Bliss on Code Pleading, see. 872; Pomeroy’s Remedies & Rem. Rights, sec. 742 (4).
The agreement for the sale from Hall Brothers to the de*515fendants Howard and Warren was reduced to writing and signed by the parties. Ho copy of this paper was made, but the original was placed in the custody of Mr. J. M. John, one of plaintiff’s attorneys. ' Previous to the trial the defendants repeatedly demanded of Mr. John an opportunity to inspect this contract. These demands were refused for the reason that the paper had been mislaid and could not be found. It was found, however, some time previous to the trial in the district court, but neither of the defendants nor their counsel was made aware of this fact, and after introducing evidence of its loss, oral evidence of its contents was permitted.
This evidence was directed principally to proof of the joint purchase and joint liability on the part of Warren and Howard, and was followed up bjr proof of the statutory law of the state of Kansas making parties to such contracts severally as well as jointly liable.
To escape the consequences of such evidence the plaintiff at a later period of the trial offered and was permitted to introduce the written instrument. His counsel now acknowl- - edge their mistake in withholding this paper, and ask this court not to inflict loss upon their clients for the indiscretion of counsel. As the paper was introduced by consent in the district court, we shall consider the case without further reference to the fact that it was not produced earlier. The instrument reads as follows:
“ Dodge City, Kas., Sept. 2d 1884.
“ Know all men by these presents that we H. J. & Wm. Hall, of Kans City Mo. have this day Bargained Sold and will Hereafter convey all their right title & interest in the Trinidad Cattle Co. of Trinidad Colorado, unto R. T. Howard & M. V. Warren of Colorado for the sum of one dollar or more paid to us & promised to be payed by certain promissory notes or Cash, & it is further agreed that the afforesaid *516Howard & Warren will Discharge all indebtedness of the said Halls indebtedness of the Trinidad Cattle Co. that now Stands on the books of said Company, & it is further agreed that Howard & Warren will pay back to Hall Bros all moneys that they have actually Expended in the purchase of Cattle & Lands for the said Company, with a profit of eighteen per cent. On the same.
(Signed) “N. J. Hall,
“R. T. Howard,
“ M. Y. Warren.
“ Witness,
“ J. W. Wilson.”
This agreement shows the joint character of the contract independently of the oral evidence. It is claimed, however, that plaintiff Warren was relieved from his joint obligation by a subsequent contract. The evidence relied upon as producing this result shows that plaintiff Warren paid one half only of the purchase price as fixed by the contract, and that the defendants took from Howard individually a chattel mortgage as security for the balance. Neither this mortgage nor a copy thereof was produced at the trial, but oral testimony as to its contents was received without objection. From this it is shown that it was given to secure the unpaid balance on the Wilcox notes, and that its provisions were the same as those of a certain deed of trust. Turning to that instrument we find it recited therein that Warren and Howard had jointly assumed the payment of the Wilcox notes.
Moreover, plaintiff while upon the witness stand admitted that Nathan Hall, the only defendant present at the time, expressly refused to release him. The following is taken from the stenographic report of Warren’s cross-examination, viz.:
' “ Q. Did you make any inquiry as to what he had reference when he told you he didn’t release you ? A. I don’t think I made him any reply whatever. Q. What did you suppose he meant when he told you that he did nob release you? A. Well, I supposed that he wanted me to pay the *517notes. Q. You supposed he had reference to those Wilcox notes at the time, didn’t you? A. Well, I was not positive. Q. Didn’t you suppose so? A. Well, I supposed so, yes sir.”
This testimony strongly tends to show that it was not the understanding of the parties that plaintiff was to he released from his obligation to pay the notes. There is no evidence to the contrary, and if there were we would be bound upon this review by the findings of the district court. Upon a careful examination of the record we see no reason for disturbing the judgment, and it is accordingly affirmed.
Affirmed.