133 P. 907 | Idaho | 1913
This action was instituted for the collection of a commission for the. exchange of real property. Plaintiffs alleged ‘ ‘ That on or about the 1st day of February, 1912, the defendant listed the said real estate with the plaintiffs for sale or trade, and that said plaintiffs on or about the 10th day of July, 1912, found a purchaser who was ready, able and willing to purchase and exchange said land at a price agreeable to the defendant.” The defendant alleged that the plaintiffs acted for and represented the purchaser and received a commission from the party to whom defendant made the exchange and was the agent of the other party, and that the plaintiffs had thereby precluded themselves from collecting a commission from the defendant.
It appears that about February, 1912, the appellant listed his land for sale or trade with the respondents and that no particular understanding or agreement was had with reference to the commission or compensation to be paid or the scope of the agency or authority of the real estate brokers. It appears, however, that the respondents were in the real estate business, known and understood as ordinary real estate agents are known and understood in the business. Sometime in May, 1912, appellant noticed an advertisement in a local paper wherein certain property was offered for sale or trade, and, appellant immediately went to respondents’ office and asked that one of the firm go at once and look at the property with a view to securing the same in exchange for a certain portion of his lands which they had listed. Clopton, a member of the respondents’ firm, immediately went and saw the party who had inserted the advertisement in the paper and had an interview with him and examined his property. After he returned he saw appellant and described the property to appellant, and told him that he “thought it was a fair proposition,” that he considered it a good chance or a good property, or something' of that kind, and he thereafter took appellant to see the property and introduced him to the owner, whose name was Batt. After an interview had between appellant and Batt and the examination by appellant of Batt’s property, Clopton took Batt to examine appellant’s property.
The original complaint was filed in this ease, and the actiori was instituted on the theory that the plaintiffs in the action were real estate brokers and that they had listed defendant’s property and undertaken to sell or exchange the same, acting in the capacity of real estate brokers. The court found, however, “that the plaintiffs in making said exchange had no discretion as agents for the said defendant in making the price or the terms of said exchange, but that said plaintiffs acted as middlemen, bringing together the defendant and the said Charles Batt for the purpose of making the aforesaid exchange.” The judgment, was entered on the theory that the respondents had acted as middlemen in simply bringing the parties together, and that they in no way acted as agents for either.
The appellant contends that the plaintiffs, having commenced their action for services as brokers and agents under the allegations .of their complaint, cannot now recover as middlemen. Technically, this contention is correct, but under the liberal rule adopted by our statute (secs. 4225 and 4226, Rev. Codes; Western Loan etc. Co. v. Kendrick State Bank, 13 Ida. 336, 90 Pac. 112; Penn. etc. Min. Co. v. Gallagher, 19 Ida. 106, 112 Pac. 1044; Johnson v. Gary, 18 Ida. 627, 111 Pac. 855); we think the court might properly find according to the facts and that this variance would not be fatal. If the trial judge had thought it necessary, he might have ordered an immediate amendment to support the evidence and finding.
The important and essential question to be considered in
“ Q. Well, you took some part in this trade, did you, you were the one — principally the one that put this trade through ? A. I suppose I was the one that put this trade through, I didn’t have any help that I found out about. Q. Didn’t Meeves help you? A. Not that I know of. Q. You did most of the work? A. I examined both properties and got the men together; they were only together at certain times when I took them together. Q. You did most of the negotiating then on both sides? A. Yes, there was nobody else doing anything that I found.”
Respondents appear to have had a written notice posted in their office during the times of this transaction stating their terms and commission charged .by them in such transactions. They do not pretend to say that the appellant ever saw this notice or had his attention called to it. They do claim, however, that he was in their office a great deal and that this was posted on the wall and that he had an opportunity to see it, and they draw the inference that he did see it on account of its being conspicuous. He denies, however, having any notice whatever of this. This notice was written in ink on a sheet of paper six by nine inches, and contained the following words:
*300 “RATES OF COMMISSION.
“1st . $3,000 5%
“2nd $3,000 3%
“Balance 2-1/2%
“In case of Trade or Exchange, each party pays one-half of all commissions,
Values being equal.”
It is clear to us from all the facts and circumstances of this case that whether the appellant had ever seen the foregoing notice or not, he had no reason whatever to suppose that in this transaction the respondents were representing anyone but him, and he clearly had no reason to infer that they were going to represent the other party or charge him a commission for carrying on this transaction.
It seems that the entire negotiation for this exchange of property was carried on by Clopton, and apparently he advised each party as to what he thought of the other party’s property and the fairness of his offer. According to his own story, he must have entered actively into the negotiation. He was more than a disinterested onlooker, more than a mere middleman whose only duty is to bring the prospective contracting parties together. A distinction has been drawn by the courts between what is commonly known as a real estate broker or agent who undertakes to find a purchaser for a piece of property and to represent the owner in negotiating a sale, and that other personage known as a middleman who is not supposed to take any interest in negotiating the deal on the part of either party. This latter character has been variously defined by the courts. This court in Synnott v. Shaughnessy, 2 Ida. (111), 122, 7 Pac. 82, pointed out the distinction between an agent and a middleman as follows: “It is laid down as the law that if an agent act openly, and with the consent of both owner and purchaser, he may contract for and receive commission from both.....And, again, if the extent of the agency be merely to bring the parties together, and does not involve the duty of negotiating for either, the agent is termed a'‘middleman,’ and may contract
The Synnott-Shaughnessy case is cited with approval by the supreme court of Iowa in Stapp v. Godfrey (Iowa), 139 N. W. 893, and in that case Mr. Justice Deemer, speaking for the court, says:
“As we understand it, a middleman is one who acts as agent of both parties, and who sustains no such confidential relations to either as that he is bound to look after his interests. He is the agent of both, and merely brings the parties together in order that they may negotiate, he being under no duty of negotiating for either. (Synnott v. Shaughnessy, 2 Hasb. (Idaho) 122, 7 Pac. 82.) Strictly speaking, a middleman is one who simply undertakes to bring the parties together, and does not involve the duty of negotiating for either. He may contract for and receive a commission from both, for such an agreement is implied from the nature of the agency. (Stewart v. Mather, 32 Wis. 344; Hedden v. Shepherd, 29 N. J. L. 334; Rupp v. Sampson, 16 Gray (Mass.), 398, 77 Am. Dec. 416.) If the agent is understanding^ employed as a mere middleman to bring the parties together, he may receive a commission from both with or without the other’s consent, provided it is simply his duty to bring the parties together.”
The case of Stapp v. Godfrey is very interesting and illuminating, for the reason that it is similar in its principal facts to the ease at bar, and the court there held that the plaintiff who was asking to recover a commission was more than middleman, and was in fact an agent who actually participated in the negotiations. In course of the discussion in that case the court said: “It is familiar doctrine that a real estate broker cannot act as agent for both buyer and seller, and receive a commission from each, without the consent of both. But this consent may sometimes be inferred from the nature of the agency.” The court also quoted at length from Casady v. Carraher, 119 Iowa, 500, 93 N. W. 386, which
It must be conceded, we think, that if the broker who claims to have been only a middleman assisted either party in effecting or negotiating the trade or made any representations to either as to the value or advantages of the property of the other, he, to that extent, made himself a partisan agent and could no longer rightfully and lawfully represent the other party to the transaction. (Strawbridge v. Swan, 43 Neb. 781, 62 N. W. 199; Stapp v. Godfrey (Iowa), 139 N. W. 895; Lindt v. Schlitz Brewing Co., 113 Iowa, 200, 84 N. W. 1059; Rice v. Wood, 113 Mass. 133, 18 Am. Rep. 459; Walker v. Osgood, 98 Mass. 348, 95 Am. Dec. 168; Friar v. Smith, 120 Mich. 411, 79 N. W. 633, 46 L. R. A. 229; Pinch v. Morford, 142 Mich. 63, 105 N. W. 22.)
An examination of the discussions that have taken place in the several courts of the country over this question discloses that the.main object of the law in drawina- the distinction between the two classes of employment is to enable the party employing the agent to obtain honest service, uninfluenced and unbiased by the private and monetary interests or opportunities of the agent. In this class of cases the real and important inquiry is not whether the agent has in fact overreached his principal, but whether he has placed himself in a position where there might be “an .inevitable conflict between duty and opportunity” (Just v. Idaho Canal etc. Co.,
In the case under consideration, the evidence does not support the finding that respondents were only middlemen employed for the sole purpose of bringing the parties together; it rather establishes their agency as real estate brokers and that they were employed as the agents of appellant. The judgment must be reversed, and it is so ordered, and the case is remanded with direction to the trial court to make findings and enter judgment in favor of the defendant, appellant herein. Costs awarded in favor of appellant.