Nittler

In appellant's petition for a rehearing, and in the brief of amicus curiae in support thereof, *506 criticism is made of the opinion, heretofore filed herein on the matter of the demurrer to the complaint. It is argued that the complaint was demurrable because it failed to allege that the broker was acting for a compensation or that the money was received as a result of a real estate transaction. We are inclined to the same view and if we had been sitting in the trial court we would probably have sustained the demurrer and required an amendment of the complaint. But when the point is raised on appeal after answer and trial this court is in a different position from what the trial court was in at the time of the ruling on the demurrer. Here it is necessary for the appellant to show that “the error complained of has resulted in a miscarriage of justice.” (Sec. 4y2, art. VI, Const.) And before we can reverse a case because of such claimed error we must be satisfied that it has resulted in a miscarriage of justice after we have examined the entire cause, including the evidence. When, therefore, the defendant has answered and gone to trial after his demurrer has been overruled and the…

Plaintiffs sued to recover damages for the breach of R. C. McKinney, a licensed real estate broker, and joined as a party defendant the Continental Casualty Company, the surety upon the bond of McKinney under the Real Estate Brokers’ Act (Stats. 1919, p. 1252). The cause was consolidated for trial with that of Carroll v. McKinney *500 et al., an action brought to recover for a similar breach, and which upon the submission of this cause upon the appeal was dismissed upon the stipulation of the parties. The cause was tried before the court without a jury and judgment was rendered in favor of the Nittlers and against the defendant McKinney and the Continental Casualty Company in the sum of $1,058 and against the defendant McKinney in the additional sum of $262. Prom this judgment the defendant Continental Casualty Company has appealed upon a typewritten record.

The complaint alleged that on the nineteenth day of March, 1927, the defendant McKinney, while acting as a licensed real estate broker, received for plaintiffs the sum of $1,320 paid to Mm as the purchase price of a gasoline service station sold by plaintiffs to the purchasers by and through the defendant McKinney acting as a…

Plaintiffs sued to recover damages for the breach of R.C. McKinney, a licensed real estate broker, and joined as a party defendant the Continental Casualty Company, the surety upon the bond of McKinney under the Real Estate Brokers' Act (Stats. 1919, p. 1252). The cause was consolidated for trial with that of Carroll v. McKinney *Page 500 et al., an action brought to recover for a similar breach, and which upon the submission of this cause upon the appeal was dismissed upon the stipulation of the parties. The cause was tried before the court without a jury and judgment was rendered in favor of the Nittlers and against the defendant McKinney and the Continental Casualty Company in the sum of $1,058 and against the defendant McKinney in the additional sum of $262. From this judgment the defendant Continental Casualty Company has appealed upon a typewritten record. The complaint alleged that on the nineteenth day of March, 1927, the defendant McKinney, while acting as a licensed real estate broker, received for plaintiffs the sum of $1,320 paid to him as the purchase price of a gasoline service station sold by plaintiffs to the purchasers by and through the defendant McKinney acting…