Mattingly

The evidence m the record is wholly insufficient to support plaintiff’s complaint. Of the many elements of the case absolutely necessary to be proven in order to establish a cause of actionf hardly one is sufficiently made out. Yet plaintiff has recovered a judgment for more than one hundred thousand dollars upon this evidence, and insists that the validity of such judgment be ratified by the court. To obviate the results which would necessarily flow from this dearth of evidence, to wit: a reversal of the judgment, the principle of the law of the case is invoked, and a former decision.of this court relied upon, wherein it is said that “the plaintiff produced testimony tending to prove his side of the case.” (Citing the testi *525 mony, Mattingly v. Roach, 84 Cal. 207 .) Conceding the evidence to be the same upon both appeals, still I do not think this declaration of the court should be held equivalent to a declaration that plaintiff by the evidence established a prima facie case for a recovery. At that time the matter under consideration was the validity of an instruction, and the sufficiency of the evidence only incidentally arose upon the discussion of that question. While in a…

This is an action to recover the sum of one hundred and twenty-five thousand dollars, commissions for the sale of mining stocks. Plaintiff alleges that by a written contract with Thomas H. Blythe, defendant’s intestate, he was authorized to negotiate a sale of said stocks for three hundred thousand dollars, and was to receive as his commission all that he could obtain for the stock above that price; that he procured a purchaser at the net price of four hundred and twenty-five thousand dollars, who was ready, willing, and able to pay that sum for the stock; and that Blythe refused to make the sale or convey the stock to the purchaser.

The cause was tried before a jury, and a verdict was rendered for the defendant. Plaintiff appealed to this court, and the judgment was reversed and the cause remanded for a new trial. (Mattingly v. Roach, 84 Cal. 207 .) A second trial was had before a jury, which resulted in a verdict for the plaintiff for the full amount claimed. The defendant appeals, and assigns error in the instructions and other rulings of the court, and insufficiency of the evidence to justify the verdict.

Respondent contends that on the former appeal the question of the…