Opinion of the Court-Ducker, J. M. B. Moore, for Respondent: Where a contract for the recovery of commissions or damages is pleaded, a recovery may be had upon a quantum meruit, even without amending the complaint and pleading the contract. Livingston v. Wagner, 23 Nev. 53; Burgess v. Russell, 24 Nev. 242; Oliver v. Little, 31 Nev. 479; Peterson v. St. Francis Hotel Co., 112 Pac. 347; Lawson v. Black Diamond C. M. Co., 102 Pac. 759. Even though the second cause of action in the amended complaint was not properly pleaded, a recovery could be had and the instruction given under the original complaint. Even if the issues are not completely stated in an instruction, if it is not prejudicial it cannot be used as a basis for a reversal. Holmes v. Neafie, 24 Atl. 1096; Brickwood-Sackett, Instructions, vol. 1, secs. 594, 599. Where a real-estate broker, having a contract with the owner for the sale of real estate, secures a purchaser within the time provided by the contract, who is able and willing to buy, and the negotiations are conducted between the principal and the proposed purchaser and a sale made, the broker is entitled to the commission provided in the contract; and if the sale is made on different terms from those provided in the contract, the broker is entitled to a commission based upon a quantum meruit, the commission being that usual for like transactions in the community. Ball v. Dolan, 114 N. W. 998; Warren v. Glasgow E. Co., 40 Nev. 103; Paschall v. Gilliss, 75 S. E. 220. By the Court, DUCKER, J.: This action was originally brought in the court below to recover the sum of $2,000 as damages for the breach of a written contract. The complaint was amended prior to the trial, and during the progress of the trial, and before the conclusion of his case, respondent, by leave of the court, again amended his complaint by including a count on quantum meruit. The trial of the Opinion of the Court-Ducker, J. cause before a jury resulted in a verdict for respondent in the sum of $1,500, and judgment was entered in accordance with the verdict. A motion for a new trial was made, which was denied by the court. From the judgment and order denying the motion for a new trial, this appeal is taken. The second amended complaint restates the cause of action set forth in the first amended complaint. alleges the written contract as follows: It "This contract for the purchase and sale of real estate, made by and between L. Avansino, of Washoe County, Nevada, party of the first part, and John G. Ramezzano, of the same place, party of the second part, witnesseth: "That for and in consideration of the sum of one dollar, in hand paid to the party of the first part by the party of the second part, the receipt whereof is hereby acknowledged, the party of the first part hereby gives and grants to and unto the party of the second part the exclusive option for a period of sixty days (60) from the date hereof and no longer, to purchase of and from the party of the first part, or to sell on his behalf the ranch of the party of the first part commonly known as the 'Kelly Ranch,' formerly owned by one Questa, and consisting of 183 acres, more or less, with the appurtenant water right thereto of 120 shares in the Orr Ditch and a certain interest said to be a one-half interest in the Kelly-O'Sullivan Ditch, for the full purchase price net to the party of the first part, without deduction, of $38,000 cash, and also interest on $26,000 at seven (7) per cent from December 15, 1916, to the date of sale hereunder, and also any and all reasonable expenditures from this date to the date of sale that the party of the first part may lay out or may incur for necessary labor and seeding said real property prior to the time of said sale. "It is especially provided that no commission shall be paid to the party of the second part or claimed by him hereunder for any sale made by him or his assigns, and that the title to said real property shall be delivered Opinion of the Court-Ducker, J. free and clear of any and all incumbrances thereon, and that a part of said purchase price, should one G. B. Questa who is now secured by a mortgage of $26,000 at seven per cent on said real property not accept payment of his said mortgage at the time of said sale, shall be the said mortgage which the purchaser will assume and agree to pay at its face, namely, $26,000, with interest at seven per cent per annum, and the balance of said purchase price, $12,000, together with the additions aforesaid, shall be paid to the party of the first part without deduction as aforesaid, and should a sale be made hereunder, in addition to the real property aforesaid the following personal property now situated upon said real property shall be included as a part and parcel of said sale: 5 working horses, 2 Deering mowers, 1 hay rake, 1 binder, 2 hay wagons, 2 sulky plows, 1 walking plow, 1 straight-tooth harrow, 1 disc harrow, 1 marking plow, 1 four-horse scraper, 2 stretchers, 1 hay derrick complete, and 8 tons of hay. "In witness whereof, the respective parties have hereunto affixed their hands and seals on this 14th day of February, 1917. In duplicate. "Witness: "L. Avansino. "John G. Ramezzano. It is further alleged that, after the execution of the contract and before its expiration, respondent entered into negotiations with the Flanigan Realty Company, a corporation, for the sale of the property, at an advance of $2,000 over and above the amount fixed in said agreement; that the company examined the property and, being satisfied with it, was ready and willing and able to purchase it at an advance of $2,000 over the price fixed in the agreement, to wit, the sum of $40,000; that the company, at the request of respondent, entered into negotiations with appellant, and that appellant knew at such time that the company had been negotiating with respondent concerning the sale of the property, and that appellant, before the expiration of the time fixed in the Opinion of the Court-Ducker, J. agreement, in order to benefit himself and defraud respondent by preventing him from selling the property at an advance over the price fixed in the agreement, refused to sell the property to the company; that prior to expiration of the contract the appellant, in order to prevent respondent from purchasing and selling the property at an advance above the price specified in the agreement and for his own gain and advantage, persuaded the company not to purchase the property, and stated to Mark L. Yori and P. L. Flanigan, who were acting for the company, that it would be to the advantage of the company to let the contract expire, and at about this time and before the expiration of the agreement appellant entered into an agreement and contract of sale with the company to sell to it the identical property specified in the agreement between respondent and appellant, for the price of $40,000, and did shortly thereafter and after the date on which the agreement between respondent and appellant had expired sell the property in question to the company and receive from it the price of $40,000 and deliver the possession thereof to the company; that, by and on account of the conduct and actions of appellant, respondent was prevented from either purchasing or selling said property, to his damage and injury in the amount sued for. The contract pleaded in the first cause of action is made a part of the second cause of action, and, in addition thereto, it is alleged therein that, immediately after the execution of the contract, respondent endeavored to secure a purchaser for the property, and informed numerous persons that he had an option to buy or sell the same, among whom were Yori and Flanigan, who, after being so informed by respondent and of the price, to wit, $40,000, entered into negotiations with the appellant on behalf of the company, which resulted in a contract and sale of the property, together with a small amount of personal property, to the company for the sum of $40,000; that said sale was the result of respondent's negotiations, efforts, and services rendered Opinion of the Court-Ducker, J. the appellant, alleged to be reasonably worth the sum of $2,000. The appellant answered without waiving his objections and exceptions to the ruling of the court, allowing the filing of the amended complaint. The answer admits the execution of the written contract set forth in the amended complaint and denies all of the other material allegations mentioned therein. As a further defense to each cause of action, it is alleged that at all times during the life of said agreement appellant was able, ready, and willing to permit the respondent to purchase or sell said property pursuant to the terms thereof, but respondent failed to comply with the terms of the contract during the life of the contract, or at all, and did not either purchase the said property or sell the same for and on behalf of the appellant as in said contract provided; that at no time during the life of the contract did respondent or the company offer to purchase said property; that subsequent to the expiration of the agreement the appellant entered into and consummated with the company a certain agreement whereby, as an independent transaction and under different terms from those set forth in the amended complaint, he sold said property to the company, together with certain personal property of the reasonable value of $3,000, for the purchase price of $40,000, less the amount of accrued interest then unpaid on the Questa mortgage mentioned in the contract set forth in the amended complaint, and that under said last-mentioned sale the appellant did not have or receive for the property described in the agreement set forth in the amended complaint the sum of $38,000 net to him as provided therein. For a further defense to the causes of action alleged in the complaint, it is alleged in the answer that at the time of the execution of the contract between respondent and appellant, and that during all of the times as alleged in the amended complaint, respondent was carrying on the business of real estate agent and solicitor |