Decided July 21, 1908.
On Petítion por Rehearing.
Opinion by
Mr. Commissioner King.It is contended that in our former opinion we held “that a recovery might be had upon a ‘subsequent agreement, express or implied,’ to the agreement alleged in the complaint,” which holding, if as contended, is error. The amended complaint, however, upon which the cause was tried, omitting formal parts, avers:
“That defendant is a corporation, and on or about August 1, 1905, was the owner of certain mining property in Douglas County, Oregon; that on or about said date defendant employed plaintiffs to secure a purchaser for said mining property, and that in pursuance of said employment, plaintiffs found a purchaser for said property, and defendant sold the same to said purchaser on or about January. 20, 1906, for the sum of $35,000; that defendant agreed to pay plaintiffs a reasonable compensation for securing said purchaser; and that $1,750 is a reasonable compensation for said services,” etc. Without testing the complaint by demurrer or motion, an answer was filed denying all the averments, except “that defendant was a corporation and owner of the mining property described in the amended complaint at the date therein alleged”; and upon issues thus formed the cause was tried.
6. It will be observed that the complaint does not attempt to give a detailed statement of the facts, or to state with whom, or how, the contract was made; nor was it necessary to do so: 6 Enc. PI. & Pr. 263. We held there was evidence adduced tending to prove the employment of plaintiffs in the capacity alleged, the sale of the mining property of defendant, and the reasonableness of the commission, which the jury fixed at the sum demanded, all of which is in conformity with plaintiffs’ averments. *136We know of no rule, nor is our attention called to any authority, requiring proof, in such cases, that the contract of employment was made on the exact date given in the complaint. While necessary to allege with convenient certainty, it is sufficient if shown to have been prior to the consummation of the sale and within the time prescribed by the statute of limitations: Quigley v. McKee, 12 Or. 22, 25 (5 Pac. 347: 53 Am. Rep. 320) ; Kitchen v. Holmes, 42 Or. 252, 256 (70 Pac. 830). Even if true, as suggested, that counsel may have insisted that the first steps taken, and conversation had at the inception of the transaction, constituted such a contract of employment, as to entitle them to the commission claimed, the proof relative to all dealings had was properly before the jury, and in passing upon the motion for nonsuit all testimony in the record was entitled to consideration in the light most favorable to plaintiffs. And it is elementary that, if there was sufficient evidence adduced by them to make a prima facie showing, it was incumbent upon the court to deny the motion, even though the counsel opposing may have viewed the evidence from a different standpoint than that taken by the court. The question for determination, under such circumstances, is not what the theory of counsel might be, but what the facts disclosed by the proof are. In this connection it is also urged that the property sold, upon which the commission is claimed, is different from that described in the complaint, which alleged oversight is assigned as error, but how this could be possible when the property was not even attempted to be described therein does not appear.
Much space is given in the petition to a rediscussion of the evidence, in reference to which it is urged that we are in error in our narrative of the facts, a sample of which is that we should have said $10,000 was paid on the purchase price of the property at the time of the sale in place of “$5,000 cash”; but this, like other details to which our attention is directed, is immaterial, for which-*137reason we have not re-examined the record to test the accuracy thereof. It can make no difference, so far as defendant’s liability to plaintiffs is concerned, whether the smaller or larger sum stated was paid, or the entire purchase price, for that matter. In fact’ it would seem that the larger the sum received by defendant, as a result of plaintiffs bringing defendant and the purchaser together, the better the reason for paying the commission.
It is next contended, as formerly, that Col. Day was not acting within the scope of his authority in his alleged transactions with plaintiffs; and many authorities are. cited in support thereof. This feature has been fully considered, and, as stated in our former opinion, whatever may be the rule elsewhere, it is settled in this State chat a person cannot acquiesce in, and receive the benefits of, his agent’s acts, while such agent was acting under an apparent authority concerning matters with respect to which it became his duty to inform his employer, and at the same time be relieved of the burdens thereof, whether the transaction concerns the sale of realty or other business dealings: Coleman v. Stark, 1 Or. 115, 118; Wood v. Rayburn, 18 Or. 1 (22 Pac. 521) ; Kyle v. Rippey, 20 Or. 446, 454 (26 Pac. 308) ; Rayburn v. Davisson, 22 Or. 242 (29 Pac. 738) ; La Grande Nat. Bank v. Blum, 27 Or. 215 (41 Pac. 659) ; Dight v. Chapman, 44 Or. 265, 278 (75 Pac. 585: 65 L. R. A. 793) ; Good v. Smith, 44 Or. 578, 585 (76 Pac. 354) ; McLeod v. Despain, 49 Or. 536, 563 (90 Pac. 492, 498: 92 Pac. 1088, 1091).
7. After a re-examination into the admissibility of the testimony of Mrs. Byron, including the purpose for which it was offered, we are impelled to adhere to our former conclusion—that the answers thus elicited were for the purpose of impeaching the testimony of Dr. Day, indicated in the opinion, and without doubt were admissible for such purpose. Our holding in this respect is in harmony both with the letter and spirit of Section 853, B. & C. Comp., and other authorities cited, to which may be *138added State v. Jennings, 48 Or. 483, 489 (87 Pac. 524: 89 Pac. 421). And, as to our observation concerning the sufficiency of the objection, in the event the testimony was offered for the other purpose suggested, it was not essential to a decision of the points involved, for which reason, as well as that there appears to be some doubt as to the correctness of the rule there announced, although sustained by eminent authority (8 Enc. PI. & Pr. 218-228; State v. Sexton, 10 S. D. 127: 72 N. W. 84), the original opinion may be amended by striking out all of that part thereof beginning with the words, “If, however, the objections made to this evidence was intended,” etc., in next to the last paragraph, to, and including, the first word of the sentence following.
With this modification of our former opinion, the petition for rehearing should be denied.
Modified: Kehearing Denied.