taken in connection with the evidence which the plaintiff had offered, it would have sufficed to constitute such a prima facie showing of negligence as to have justified the court in denying the motion for nonsuit. The rule is well settled in this state, in cases where a motion for nonsuit has been denied, and the defendant has then proceeded to offer evidence as to the facts and circumstances attending the accident, that if all of the evidence given on the trial by both parties considered together sufficiently supports the verdict, the order denying the motion for nonsuit will not be disturbed. (Scrivani v. Dondero, 128 Cal. 31, [60 Pac. 463]; Williams v. Long, 139 Cal. 186, [72 Pac. 911]; Lowe v. San Francisco & N. W. Ry. Co., 154 Cal. 575, [98 Pac. 679], and cases cited.

The appellant urges several alleged errors of the court in respect to its instructions to the jury. None of these merit especial attention except the objection that the court erred in its ruling refusing to give a requested instruction on the subject of the plaintiff's contributory negligence. The answer to this objection is that there was no evidence of any contributory negligence on the part of the plaintiff sufficient to justify or warrant the giving of such an instruction. Besides, the defendant had not presented the issue of contributory negligence in its answer. (White on Personal Injuries, sec. 441.)

The appellant further contends that its motion for a new trial should have been granted upon the ground of newly discovered evidence. The two items of newly discovered evidence upon which the appellant relied were, first, a written statement of one of the plaintiff's main witnesses as to the circumstances of the accident, made a day or two after its occurrence, which varied in certain material respects from his testimony given at the trial, and which the defendant claims it could have used for the purpose of impeachment of such witness had this written statement been in its possession at the time his testimony was given. It is a well established rule, however, that newly discovered evidence which is simply impeaching or cumulative in character is insufficient to support a motion for a new trial. (People v. Goldensen, 76 Cal. 328, [19 Pac. 161].)

The second item of evidence which the defendant claimed to have been newly discovered by it was the cap of the steampipe which was blown off at the time of the plaintiff's injury.

We do not think that the affidavits offered in support of the defendant's motion amount to a sufficient showing of due diligence as to either the statement of the witness Marshall, or the search for the missing cap, to have entitled the defendant to a new trial. Nor do we think that either of these items of newly discovered evidence if produced would have materially aided the defendant or affected the result of the trial.

Judgment and order affirmed.

Lennon, P. J., and Kerrigan, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal was denied by the supreme court on May 24, 1915.

[Civ. No. 1458. First Appellate District.-March 27, 1915.] I. R. MACKROTH, Respondent, v. CHARLES SLADKY, Appellant.

ACTION FOR MONEY HAD AND RECEIVED PLEADING AMENDMENTSRULE.-Liberality in the allowance of an amendment to a pleading is the rule rather than the exception; and in cases where such an amendment can be made in furtherance of justice without jeopardizing the rights of an adverse party, it should freely be allowed. This of course assumes that neither the cause of action, nor the issues involved therein will be radically changed by the proposed amendment.

ID.-AMENDMENT TO COMPLAINT WHEN PROPER.-Where the original complaint, although stated in the form of an action for moneys had and received, was, as indicated by the plaintiff's bill of particulars, in fact founded upon an agreement to divide the commissions received by the defendant for the sale of certain property, which property procured to be placed in his hands through the intercession of plaintiff, for the purpose of negotiating a sale, there was no error in allowing the plaintiff before the final hearing of the case to file an amended complaint which set forth an oral agreement and facts in substance the same as plaintiff's bill of particulars disclosed, as the original and amended complaints dealt primarily and practically with the same subject-matter, and to all intents and purposes, sought precisely the same relief.

ID. SAME CAUSE OF ACTION-TEST OF.-The test as to whether a new cause of action has been introduced by the offered amendment is to learn if the recovery on the original complaint would be a bar to a recovery on the amended complaint; and the fact that the proof required to support the cause of action stated in the amended complaint might be different from that offered and received in the original complaint would not necessarily tend to show that the amended complaint stated a new and entirely different cause of action.

ID. REAL EState Brokers-ORAL AGREEMENT TO SHARE COMMISSIONSVALIDITY OF.-An agreement between two real estate brokers to share commissions need not be in writing; and therefore in such a case the obligation of the defendant would be the same whether founded upon a written or oral agreement.

ID. AMENDMENT STATUTE OF LIMITATIONS.-The fact that the oral agreement offered and relied upon for a cause of action in the amended complaint would have been barred by the statute of limitations at the time when the amended complaint was filed, did not preclude the lower court in the exercise of its discretion from granting plaintiff's motion to amend, where the amended complaint did not present or in any wise involve a new or entirely different cause of action from that stated in the original complaint, as the amended complaint related back to the date on which the original complaint was filed in so far as the plea of the statute of limitations was concerned.

ID. SECONDARY EVIDENCE-LETTER OUT OF JURISDICTION.-There was no error in admitting secondary evidence of the contents of a letter written by the plaintiff to one out of the state where the person to whom it was addressed testified that if it was still in existence at the time of the trial it was among his papers in Mexico.

ID. PROPERTY-FISHING CONCESSION.-Where the court found that the agreement of the parties was to divide equally all commissions which the defendant might receive upon sales of any properties in Mexico secured by defendant from parties introduced to him by plaintiff, a fishing concession was property within the meaning of the contract.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge.

The facts are stated in the opinion of the court.

J. E. White, and A. A. Montagne, for Appellant.

Clarke & Kinsey, and William M. Sims, for Respondent.

LENNON, P. J.-The plaintiff's original complaint in this action was unverified. It stated a cause of action against 27 Cal. App.-8

the defendant for moneys had and received in the sum of two thousand five hundred dollars. Pursuant to the defendant's demand therefor the plaintiff served and filed her bill of particulars which, as the foundation of her cause of action, declared that "on July 20, 1909, . . . defendant made, executed and delivered to the plaintiff the following: 'July 20, 1909. In the event of my making a sale I will give one-half the commissions received on any of the Mexican properties I obtain through I. R. Mackroth directly or indirectly. (signed) Charles Sladky.'" The bill of particulars further stated that in accordance with the foregoing memorandum of agreement plaintiff gave to the defendant a letter of introduction to Louis Martinez de Castro, a resident of the state of Sinaloa, Mexico; that some time during the year 1909 the defendant negotiated a sale of certain fishing concessions and business situated in Mexico from said Louis Martinez de Castro to the Pacific Canning & Exploration Co., for which service the defendant received as a commission from de Castro the sum of two thousand five hundred dollars, and that defendant was indebted to the plaintiff for one-half of said sum under and by virtue of the memorandum of agreement previously referred to.

The unverified answer of the defendant consisted of a general denial of the allegations of the plaintiff's complaint; and upon the issues thus framed the case proceeded to trial on March 20, 1912, but before the trial was concluded the trial court, "pursuant to the stipulation of the parties herein. in open court," ordered that all of the testimony theretofore offered and received be stricken out. Apparently the trial of the case was thereupon continued by consent to January 28, 1913, at which time by agreement of counsel the trial court ordered that the case be tried de novo. Some time between the first and second hearing of the case the plaintiff, pursuant to a motion duly noticed and granted, served and filed an amended complaint, which for a cause of action alleged an oral agreement on the part of the defendant made on or about September 1, 1908, to divide equally with the plaintiff any and all commissions that might thereafter be earned and received by the defendant for making a sale of certain described properties and concessions in the Republic of Mexico which had been previously placed with and through her intercession intrusted to the defendant; that relying on the prom

ise of the defendant to divide such commissions, the plaintiff in addition placed in his hands for sale a number of different properties in the Republic of Mexico which she, the plaintiff, had already been employed to sell; that the plaintiff gave to defendant a letter of introduction to one Louis Martinez de Castro, the owner of many properties in the Republic of Mexico, and at the same time wrote, addressed, and mailed to said de Castro a separate letter recommending that the defendant be employed to make a sale of such properties as de Castro might be willing to sell; that the letter of introduction which had been forwarded to de Castro by the defendant brought about a correspondence concerning the sale of certain of de Castro's properties, which resulted in the defendant proceeding personally to Mexico, where he met de Castro and procured from him authority to negotiate a sale of certain fishing concessions; that the defendant thereafter and upon. returning from Mexico negotiated a sale of said concessions to the Pacific Canning & Exploration Company, for which as a commission de Castro paid to the defendant the sum of two thousand five hundred dollars in gold coin of the United States, which the defendant refused to divide with the plaintiff. The answer of the defendant denied in detail every material allegation of the plaintiff's complaint; and upon the issues thus reframed the case was tried anew. Judgment was entered against the defendant and in favor of the plaintiff for the sum of one thousand two hundred and fifty dollars, from which the defendant has appealed upon a certified record of all of the proceedings had in the lower court.

The ruling of the trial court granting the plaintiff permission to file her amended complaint, was not an abuse of discretion, nor did it prejudice the defendant. "Liberality in the allowance of an amendment to a pleading. . . is the rule rather than the exception; and in cases where such an amendment can be made in furtherance of justice without jeopardizing the rights of an adverse party, it should be freely allowed." (B. & W. Engineering Co. v. Beam, 23 Cal. App. 164-177, [137 Pac. 624-629].) This of course assumes that neither the cause of action, nor the issues involved therein will be radically changed by the proposed amendment. In the present case the cause of action relied upon in the plaintiff's original complaint, although stated