12 Ind. App. 177 | Ind. Ct. App. | 1895
This action was brought by the appellees against the appellant to recover commissions for the sale of real estate.
The appellant’s assignment of errors simply .calls in question the ruling of the court below in overruling his motion for a new trial, under which motion the only questions urged for the reversal of the judgment of the court below arise on the refusal of the court to give instructions numbered one and two of those asked by appellant, and on the giving by the court of its own motion over the objections of the appellant, of instructions numbered three and four of those given.
Instruction number three of those given by the court is as follows:
“If you find from a fair preponderance of the evidence that at the time described in the complaint, the
The objection urged to this instruction is that it is not applicable to the evidence; that it is based on a state of facts at variance with the theory of the complaint, hence, naturally tended to confuse and mislead the jury.
An instruction may often state the law accurately, as a mere abstract legal proposition, and yet be inapplicable to the evidence admitted under the issues in the case. The test to be applied, therefore, in determining the correctness of an instruction is not whether it states the law correctly, but does it state the law correctly as applicable to the evidence and facts under the issues. It •is, therefore, the duty of the court to give to the jury only such instructions as are applicable to the evidence admissible under the issues, and to see that they are couched in such language as that they may not be misunderstood by the jury in applying the law to the facts as they may find them from the evidence.
The instruction above set out is not subject to the criticism urged against it by appellant’s counsel.
Instruction number four reads as follows:
And instruction number two, which the appellant asked to be given, but was refused, is as follows:
“The plaintiffs claim, in substance, that they were acting as defendant’s agents for the sale of certain of his real property, and that, as such agents, they procured one Benjamin C. Wheat to become the purchaser of such real estate. If you find that Wheat purchased such real estate in trust for a syndicate, composed of several persons, including either of the plaintiffs, then you should find for the defendant.”
Counsel for appellant contend that “taken together, the above instruction refused and instruction number four given, raise the question whether a real estate agent
The policy of the law is to exact from an agent the strictest integrity with reference to the duty owing from him to his employer. The rule, therefore, that prohibits the agent from representing interests antagonistic to those of his principal, stands upon the great moral obligation that one employed by another shall be honest in the performance of his duty to his employer, and not let self-interest conflict with his integrity.
In the case of Simonds v. Hoover, 35 Ind. 412, where the question presented was whether or not Simonds, who was employed by one Zellers to sell real estate for him, in making a sale to or exchange thereof with Hoover, could recover a commission from Hoover, who had also employed him to make a sale of his property. Pettit, J., speaking for the court, says: “Law and morals (which are the same) alike forbid that a man shall be the agent of two persons and receive pay from both in the transaction of business between them, where their interests are antagonistic. He can not, or at least he is not likely to, discharge his duty with fidelity to both.”
“The law does not allow a man to assume relations so essentially inconsistent and repugnant to each other. The duty of an agent for a vendor is to sell the property at the highest price; of the agent of the purchaser, to
How much more forcible the inhibition if the agent’s own interests and those of his principal are opposed to each other. While the sense of duty might prevail over the motives of self-interest, the probability in many cases, and the danger in all cases, is that the dictates of self-interest will exercise a predominant influence, and supersede that of duty.
The rule is, therefore, a salutary one that forbids a person, who undertakes to act for another in a matter, from acting for himself with reference to the same matter. For, it is the aim of the law not only to ferret out and rectify the possible wrong which the agent may have committed against his principal, but, as far as possible, to throw around those acting in the capacity of agents such a bulwark of restraint as will remove all possible temptation. Michoud v. Girod, 45 U. S. 502 (554), and cases cited; Dutton, Admx., v. Willner, 52 N. Y. 312; Porter v. Woodruff, 36 N. J. Eq.174.
And it may be said that in any case, where it appears that the interests of the agent and those of his principal conflict, the courts will subject the acts of the former to the closest scrutiny and infer that he acted corruptly and from a self-interest in all cases of doubt, thus easting upon the agent the burden of proving the good faith and honesty of the transaction. And it will not suffice simply to show that the principal has received all that he directed the agent to ask, or that the amount received was all that could have been procured from a stranger, for here, again, the rule applies that the agent can not act in the transaction in the dual position of both agent and principal.
The law, while it forbids the agent while acting as such from taking advantage of his principal by reason
We recognize the strictness with which the courts uniformly hold to the rule of forbiddance above announced and fully concur therein, believing it to be founded not only upon considerations of policy, but upon the plainest principles of justice and equity.
Under the evidence in this case, which, to say the least, is far from convincing upon the question of the employment of the appellees by the appellant as his
Counsel for appellee have cited many cases in which the courts have held that a party may represent both principals in a transaction and collect a commission from each. In all of those cases, however, it clearly appeared that the principals knew that the agent represented both, and yet each consented that he might act for the other in that capacity. In no case cited has it been decided that when the agent himself became the purchaser and the only promise or agreement made by the principal to pay the agent for making the sale was that made when he was originally employed to find a purchaser, the agent could collect a commission for making the sale. When the relation of principal and agent between appellant and the appellees ceased, which it did when the appellee Bookwalter became the purchaser, it required a new contract between them from that originally entered into to enable the appellees to occupy the dual positions of principals and agent.
The fourth instruction wholly ignores the necessity for
The court, therefore, erred in giving the fourth instruction, for which reason the judgment will be reversed, with instructions to sustain appellant’s motion for a new trial.