Cannell v. Smith, No. 209

No. 209 | Pennsylvania Court of Common Pleas, Philadelphia County | Apr 27, 1891

Per Curiam:

The defendant was a real-estate broker and attempted to serve two masters. There is high authority for saying that this cannot be done: Matt, vi., 24. The plaintiff paid him á commission of five thousand dollars for effecting a sale of certain real estate, in ignorance of the fact that he was also the broker or agent of the purchaser. When she discovered that he was acting in this dual character, she brought this suit in the court below to recover back the money so paid, and succeeded. We have no doubt of the right to recover money paid under such circumstances. It is against public policy and sound morality for a man to act as broker for both parties, unless that fact is fully communicated to them. The right to recover being established, this judgment must stand unless some error was committed on the trial below by which the defendant was prejudiced.

A careful examination of the record fails to disclose any such error. The court was not asked to direct a verdict in favor of the defendant, and could not properly have done so in view of the evidence. This disposes of the first assignment. The second is without merit. The payment of the two thousand six hundred dollars to the Drexels was a fact in the case. The defendant’s belief as to his moral or legal liability to pay this money was not important; nor was it material that he had never made any admissions “ to the Masseys, or any one else,” upon this subject. The testimony of the witness Shallcross was properly rejected. The plaintiff’s right to recover did not depend upon the character of the sale, whether advantageous or otherwise; it rested upon the higher ground of public policy: Everhart v. Searle, 71 Pa. 256" court="Pa." date_filed="1872-05-13" href="https://app.midpage.ai/document/everhart-v-searle-6234392?utm_source=webapp" opinion_id="6234392">71 Pa. 256. The instructions complained of in the fourth and fifth assignments are free from error. The learned judge fairly submitted to the jury the question of plaintiff’s knowledge of the defendant’s dual character. There was abundant evidence of her ignorance upon this point to go to the jury. She testified distinctly that the defendant told her he was acting for her, and for her alone. The defendant did not deny that he had been employed by the purchasers. His contention was that he had ceased to act for them before he entered the service of the plaintiff. This was a question of fact for the jury, and unfortunately for the defendant they did not take his view of it.

Judgment affirmed.