207 Mo. 632 | Mo. | 1907
— This cause reaches this court by appeal on the part of the plaintiff from a judgment of the Jasper County Circuit Court in favor of the defendant. This action results from a transaction between the plaintiff and the defendant concerning the sale of a certain mining lease placed in the hands of plaintiff for sale by the defendant and an agreement and contract entered into by which the sum of $5,000 was to be paid plaintiff as commission for the consummation of such sale. This is the second appeal of this cause to this court. The first appeal was upon the part of the defendant and the cause was reversed and remanded. This appeal, as before stated, is on the part of the plaintiff.
The nature and character of this proceeding is fully set forth in the case of Corder v. O’Neill, 176 Mo. 401; it is therefore not essential to reproduce in detail the entire pleadings, but it will be sufficient to a full understanding of the issues presented in the .last trial of this cause to briefly refer to some of the allegations in the petition and answer. The petition alleged that the plaintiff “was at all times hereinafter mentioned engaged in the business of selling real estate, mines.
“Plantiff further states that at the time of procuring said property for sale defendant only asked the sum of eighty-five thousand dollars therefor and by agreement with defendant offered and contracted said property for the sum of ninety thousand dollars, it being agreed that the excess over eighty-five thousand*637 dollars, to-wit, five thousand dollars, should be paid by defendant to plaintiff for making said sale.
“That within the time limited plaintiff sold said property for ninety thousand dollars to one Frederick R. Tibbets on March 22, 1890, and five thousand dollars of the purchase price was thereupon paid by said Tibbets to plaintiff, and the balance was to be paid by said Tibbets on or before May 1, 1899. ’ ’
The foregoing averments were followed by allegations asserting that there was a verbal agreement entered into between Tibbets, the purchaser procured by the plaintiff, and the defendant, to extend the contract for thirty days, giving said Tibbets that much more time to purchase said property. Then follows the averment alleging a breach of such oral agreement and the prayer for relief that by reason of the breach of such verbal agreement and promise to extend said original contract by the defendant and by reason of the fraud thereby practiced upon the plaintiff, plaintiff is damaged in the sum of five thousand dollars, for which sum he prays judgment.
After this cause was remanded to the circuit court of Jasper county for a new trial the defendant filed an amended answer on January 4,1904. The first paragraph of said amended answer was a general derfial. The new matter set up in the amended answer was as follows:
“Second. Further answering defendant states that without his knowledge or consent the plaintiff agreed to and did receive money as commission or compensation for services in and about the alleged sale, from the purchaser of the property described in the petition, and thereby forfeited all his claim against defendant and is not entitled to recover herein.
‘ ‘ Third. Further answering defendant states that without the knowledge or consent of defendant the plaintiff entered into an agreement with the represen*638 tatives of the purchasers of the property described in the petition to ‘pool’ or divide the commissions received and to be received from the defendant and the purchaser of said property in the petition described. That said agreement was made before the consummation of the sale of said property. That in pursuance of said agreement the agent of the said purchaser did receive money from the latter as commission or recompense for services in and about said purchase and did carry out said agreement and pay a portion thereof to defendant. By reason whereof, plaintiff forfeited all his claims against defendant and is not entitled to recover herein. ’ ’
To this amended answer the plaintiff filed a reply, which embraced a general denial of the new matter, and “further replying, plaintiff avers that plaintiff procured and introduced the purchaser to defendant and that plaintiff had no hand in the negotiations between them; that said purchaser and defendant made their own bargain without plaintiff having anything to do with fixing of the price or terms of said sale and without plaintiff’s interference in anywise. Wherefore, plaintiff prays judgment as in his petition prayed. ”
Upon the issues thus presented the trial of this cause proceeded. It is practically conceded that the facts developed at the trial of this cause are substantially the same as in the trial of the cause upon the former appeal, except as to the evidence introduced upon the issue presented by the new matter in the amended answer of defendant; hence we deem it unnecessary to undertake to again repeat the facts developed' which-fully appear in the case of Corder v. O'Neill, supra, and shall confine our reference to the testimony to the issue presented by the new matter in the amended answer of the- defendant. The- testimony as disclosed by the record upon this issue is quite voluminous, but' doubtless the trial court sustained a demurrer to the evi
The plaintiff was introduced as a witness and upon' the subject of his employment by the defendant to make this sale, said:
“Q. Who named the price at which this property would be sold — who fixed the price? A. Mr. Bruen.
“Q. What was said in that connection, Mr. Corder, about the price of the property and the commission? A. We asked Mr. Bruen what his price was, and he said the price was $85,000. Then I said, ‘Mr. Bruen, will you allow my commission out of that?’ and he said, ‘You will have to add it to it, ’ and I said to him, ‘If I add my $5,000 to it, will you then hold the price at $90,000 and give me a contract bade for the $5,000?’ And he said, ‘Yes.’ That was the agreement between us.”
As applicable to this same subject of employment and the nature of the employment, witness Mr. Geddes testified as follows:
“ Q. You may state if you went there by arrangement between you and Mr. Corder at the time? A. Yes, sir.
“Q. Now go ahead? A. Col. O’Neill said it was for sale; but was in such shape he couldn’t give an option. ... I told him the parties were cash purchasers and didn’t care for an option if he could sell it, and he said he could. Said his price was $85,000'. . . . I told him I would add my commission to that amount.
“Q. Did you state what it was? A. No, I didn’t at that timé tel] Col. O’Neill. I think I didn’t. I am not sure.
*640 “Q. State further all that was said? A. Well, he said he would want an immediate payment for the property and would give time on the balance.”
The plaintiff again in testifying as to the information that he acquired from the defendant in relation to the property, said:
“Q. Now, what, if any, statistics did you get up in regard to the property and send to any of the parties you were putting this property to? A. I furnished a regular statement of it, together with a prospectus of it written up' and describing the property.
“Q. Well, probably the jury would not understand what a regular statement was? A. Statement of the production and earnings, etc., and royalties, what the royalties amounted to.
“Q. Covering what period of time? A. I don’t remember now, but very probably — I don’t know whether they ran back as far as six months or what time.
‘ ‘ Q. From whom did you obtain the data you used in making up this statement? A. Mr. Bruen.
“Q. Where were you when you obtained them? A. I am trying to think where that was gotten — whether got it from Mr. Bruen — whether Mr. G-eddes got it or I. We were trying to deal together, you know, and I don’t know,whether Geddes went for a fact or I.
“Q. To whom did you send those statements or prospectus? A. I furnished it first to Mr. House, who was getting the statement originally for the Playters.
‘ ‘ Q. And the statement went to the Playters ? A. Yes, sir. ... I presented these facts first to Mr. House.
“Q. Going to Playters — for the Playters ? It was the medium you adopted to get it to the Playters? A. Yes, that is right. ’ ’
Plaintiff also testified a,s to the meeting between
‘ ‘ Q. And you were present the time that [the contract of sale] was agreed to between Playter and Breen ? A. Yes, sir.
“Q. And took part in that discussion? A. Yes, sir.
‘ ‘ Q. And you wanted the thing to go through and assisted in whatever you could to get them together? A. Yes, sir.
“Q. Who fixed the terms — who agreed upon the terms ? A. I arranged the terms with Mr. Bruen.
“Q. I mean between Playter and Bruen? A. We were all together, all three of us, discussing the matter together, you know.”
Upon this same subject witness Geddes testified and made answer to the following questions:
“Q. WThat I mean, you gentlemen came in there and talked back and forth? A. Yes.
“Q. And to some extent more or less discussion between you, and the result of all the discussion there was these contracts, the terms of these contracts were agreed upon and afterwards reduced to writing? A. Yes, sir. ■
“Q. That is a fact, isn’t it? A. Yes, sir.”
Upon the subject of dividing the commissions to be paid by the purchaser and the seller, who was the defendant, the plaintiff as the record discloses testified as follows:
“Q. You and Mr. Geddes in all this matter were in together? A. Yes, sir.
“Q. Now, I will ask you if it isn’t a fact that Mr. Geddes and you had a contract at that time by which you were to receive a commission from the purchaser of this property for the making of the sale? A. When we first entered into the agreement Mr. House, who*642 at that time was hunting for a property for Playter, said to me that I will make something out of this and I ■will divide it with you, which he afterwards done.
‘ ‘ Q. He gave you a part of the commission he had received from the purchaser? A. Yes, sir.
“Q. And that was the arrangement during all this time, commencing prior to the contract of March 22nd? A. Yes.
“Q. You never told Col. O'’Neill that? A. I did not. . . .
££Q. As a matter of fact, you were interested on both sides in the way of commissions all through this matter? That is a fact? A. Yes, I said that.”
Witness Geddes, upon the subject of the division of commissions, testified as follows:
“Q. You and Mr. Corder were working together? A. Yes, sir.
i£Q. Under an agreement to divide what you made? A. Yes, sir.
£ £ Q. And you did divide what you received from the purchaser? A. Yes, sir. It was divided between four of us. Well, we never received any. It was to be .divided.
££Q. You did get some? F'rom the purchaser, now? Not Col. O’Neill’s side, but the other? A. Yes, ■we received a payment from Mr. Playter.
‘ ‘ Q. And there had been an understanding to that effect that you were to receive that all the time? Col. Corder had an agreement with them for $3,000? A. That is my recollection.
££Q. Out of the commission? A. Yes, as commission.
£ £ Q. And that agreement was in existence during all the time of these transactions? A. I presume so.
‘ ‘ Q. You knew of it before this contract was signed, didn’t you? A. Yes, sir.
*643 “Q. You never advised Col. O’Neill of that fact? A. No, sir. ”
While the record discloses numerous other answers to questions propounded to plaintiff upon his examination which might he construed as being in conflict with the answers to questions as heretofore recited, yet we do not deem it necessary to reproduce all the questions and answers propounded to the plaintiff. We will give such other answers as are disclosed by the record and referred to by learned counsel for the plaintiff such attention as they merit during the course of the opinion.
At the close of the evidence the court sustained a demurrer to the evidence and instructed the jury that under the law and the evidence in the cause their verdict should be for the defendant. To the action of the court in so declaring the law plaintiff properly preserved his exceptions. Upon the giving of such instruction the plaintiff took an involuntary nonsuit with leave to move to set the same aside. Plaintiff then filed his timely motion to set aside the nonsuit and grant the plaintiff a new trial, which was by the court overruled and judgment was rendered in conformity to the verdict which the jury was directed to return, and from this judgment the plaintiff prosecutes this appeal, and the record is now before us for consideration.
OPINION.
The record before us in this cause presents but one legal proposition, that is, under the facts developed upon the trial of the issue presented by the- new matter in the amended answer of the defendant, is the plaintiff entitled to recover? In other words, was the action of the court in sustaining a demurrer to the evidence offered by plaintiff proper or was it erroneous?
We have carefully analyzed the facts developed at the trial, as disclosed by the record, and in our opin
In Chapman v. Currie, 51 Mo. App. l. c. 43, it was announced as a general rule that “a man cannot act as the agent or representative of both parties to a trade, and, if he puts himself in so unworthy a position, the law will not recognize any of his pretended rights growing out of it. Such contracts are held to be absolutely void as being contrary to public policy, and it makes no difference that such common agent was guilty of no actual wrong. The courts refuse to countenance such an employment, not for the sake of the principals, but for the sake of the law,” and it was announced by the court that the great weight of authority is with this
In Lynch v. Fallon, 11 R. I. 311, it was held that “a broker acting at once for both vendor and vendee assumes a double agency disapproved by the law, and which, if exercised without full knowledge and free consent of both parties, is not to he tolerated.” It was said by the court in that case: “As agent for the vendor, his duty is to sell at the highest price; as agent for the vendee, his duty is to buy for the lowest; and, even if the parties bargain for themselves, they are entitled to the benefit of the skill, knowledge and advice of the agent, and, at the same time, to communicate with him without the slightest fear of betrayal, so that it is hardly possible for him to be true to the one without being false to the other.”
In Everhart v. Searle, 71 Pa. St. 256, it appeared that the agent was acting for the purchaser as well as the seller. It was there held that such an arrangement, unless made with the consent of both parties, was void as against public policy, and it was said by the court that “the danger of temptation from the facility and advantage of doing wrong, which a particular situation affords, does, out of mere necessity, work a disqualification. ”
In Rice v. Wood, 113 Mass. 133, the law as applicable to this subject was very clearly stated. It was there said that “contracts which are opposed to open, upright and fair dealing are opposed to public policy. A contract by which one is placed under a direct inducement to violate the confidence reposed in him by another, is of this character. . . . Nor is it necessary to show that injury to third persons has actually resulted from such a contract, for in many cases when it had occurred this would be impossible to he proved. The contract is avoided on account of its necessarily injurious tendency.”
The doctrine announced by the Courts of Appeals of this State is fully recognized by this court in Connor v. Black, 119 Mo. 126; Grumley v. Webb, 44 Mo. 444; and Atlee v. Fink, 75 Mo. 100. In the case last cited, Judge Henry, in speaking for this court, said: “One employed by another to transact business for him has no right to enter into a contract with a third person, which would place it in his power to wrong his principal in the transaction of the business of the latter, and which would tempt a bad man to act in bad faith towards his employer. The interests of the defendant’s employers, and those of plaintiffs, as buyers and sellers, were antagonistic, and defendant could not serve two masters in a matter in which there was such a conflict in their interests.”
In the case at bar it is clear from the testimony of
Learned counsel for appellant earnestly and very ably present the contention that the court erred in
In our opinion it is manifest from the disclosures of the record that while the plaintiff may not have committed any wrong or perpetrated any fraud upon either the seller or the buyer of the property involved in this transaction, yet it is apparent that he was acting for two parties occupying antagonistic positions. He was to receive commissions from the defendant, the seller, and also commissions from the purchaser. In other words, he was acting for both parties. The defendant, the owner of the property, it is true, had fixed a definite price for the property. The price being fixed, it was a matter of interest to find a purchaser. Plaintiff, referring to information concerning this property, in his testimony says that he procured statistics in reference to' production, earnings and royalties and what the royalties amounted to from Mr. Bruen, who was managing the property for the defendant. This information, doubtless, and as the plaintiff states, was procured for the purpose of inducing the party they had in hand to purchase. Now, it is clear that he was to receive commissions for making the purchase of this property from the purchaser; therefore, we are unable to see how it can be seriously contended, even upon the question of presenting this information to the purchaser, with the purpose of inducing him to purchase, that the plaintiff occupied a disinterested position and unsurrounded by any incentive to act unfairly with the defendant or the purchaser, from both of whom he was to receive commissions. We do not mean to say that he in any way colored the information he received in respect to the output, earnings and royalties of the property to sell to the purchaser, but we do say that he was deeply interested in the consummation of that sale,
We see no reason to further discuss the propositions disclosed by the record. We are of the opinion that the plaintiff does not fall within that class of cases which would designate him as a middleman. The appellate courts of this State, as indicated in the citations heretofore made, evidently do not look upon with favor any doctrine which would encourage agents and brokers in accepting commissions in deals from both parties occupying antagonistic positions in such deal. Agents engaged in the sale of real estate should have but one principal, who is entitled to the best judgment, disinterested advice and assistance and service of such agents respecting the deals which they may have in hand, and we are unwilling, where the proof shows that commissions and arrangements have bee'n entered into by which the agent or broker is to receive commissions from both sides, to indulge in any refined theories to make him a middleman, when seeking to recover the amount of the commission agreed upon between one of such principals.
We have given, expression to our views upon the leading legal propositions disclosed by this record, which results in the conclusion that the action of the trial court in sustaining the demurrer to the evidence was proper, and its judgment should be affirmed. It is so ordered.