125 Cal. 276 | Cal. | 1899
This action is brought to recover commissions for an exchange of real estate. Judgment went for plaintiff, and a new trial was granted upon motion of defendant. The appeal is prosecuted by plaintiff from the order granting a new trial.
For a defense to the action it is claimed that plaintiff’s assignors, the brokers, received compensation for their services from the other party to the trade without his (defendant’s) knowledge, and for that reason he now insists that the brokers are barred from recovering any compensation from him. In other words, it is claimed that the law will not allow the brokers to act as the agent of both parties, and a contract of that kind for compensation will not be recognized by the courts. As a general principle, this contention is sound, but there are circumstances where a party may act for two persons and charge compensation from both for his services. If the duty of the broker is simply to bring together two men who desire to exchange their lands, and the broker’s entire duty is performed when he has brought the two men together, then we see nothing against good morals and a sound public policy in allowing compensation to the broker from each of the parties. In such a case, the broker is in no sense representing conflicting interests. He has nothing whatever to do with the trade. Under the contract his advice and assistance to either party is not called for. Upon the state of facts here assumed, the broker may be termed a middleman and not an agent in the strict sense of the term.
In Green v. Robertson, 64 Cal. 76, this court said: “The matters set up in the answer as to the employment of plaintiff by Tucker do not constitute a defense. The plaintiff made no bargain for the sale of the property; he was not authorized to make a bargain; he undertook to bring the buyer and seller together, and he did so; they made their own bargain; and after plaintiff had rendered his services and brought them together, and after they had made their bargain, the defendant executed the instrument in suit.”
If the broker here was merely a middleman, as in the cases above cited, the defendant could not defeat plaintiff’s cause of action upon the ground that the other party to the exchange of property had paid him a fee for the services rendered. This question was essentially one of fact and one upon which the trial court found in favor of plaintiff. Yet while the evidence was ample to support such a finding, there was some evidence to the contrary—possibly sufficient evidence to justify a finding the other way if one had been made. The new trial appears to have been granted upon the ground of the insufficiency of the evidence to support the findings, and where the evidence is at all conflicting we cannot disturb the order which grants a new trial. For these reasons the order appealed from must be affirmed.
By the broker’s contract with the defendant in this case they were employed to made a “deal” for him respecting a certain piece of property. By plaintiff’s complaint he alleged that under this contract the brokers procured a purchaser able and willing to purchase the land. Under the contract and under
For the foregoing reasons the order appealed from is affirmed.
Harrison, J., and Van Dyke, J., concurred.