208 Mich. 595 | Mich. | 1919
Defendant was the owner of a large farm in Barry county upon which he desired to negotiate a mortgage loan of $5,100. He applied to plaintiff to negotiate it for him. The agreed consideration for obtaining the loan appears to have been $50, and in addition thereto any expense plaintiff might incur in taking prospective lenders to view the premises. Plaintiff took two persons to view the farm, but both re
1. It is, undoubtedly, true, as argued, that to entitle plaintiff to recover it was necessary for him to
2. In view of the fact that a retrial must be had, another question over which counsel are at variance should be noticed. The trial court expressed the opinion that:
“It must be admitted that it is a seeming hardship that defendant should pay two parties for procuring this loan% It is my judgment, however, that in order to save himself from the danger of being called upon to do so, he should have made such a contract with plaintiff as would have protected him, and that at the very least he should have informed him that he was seeking the loan elsewhere, and would not be held to pay the plaintiff should he succeed in getting it before the plaintiff did.”
Defendant’s counsel insist that this is an erroneous view of the law because plaintiff did not have an exclusive agency and because plaintiff did know that others were working on the loan, and authorities are cited to the effect that where several brokers act independently and with knowledge of the fact that one who first completes the sale or obtains the loan is entitled to the commission. Among these citations is 4 R. C. L. p. 385, which states the rule to be that:
*599 “Where the same property is placed for sale with two or more brokers, the owner, provided he remains neutral towards the several brokers, is liable for commissions only to the one who first completes the sale, or if the owner has not delegated authority to conclude the transaction, to the one who first produces a customer, able, ready and willing to purchase the property on terms agreeable to the owner; and this is true without any express contract to that effect.” Citing authorities.
Under this rule, if. plaintiff first obtained the loan, then he was entitled to his commission. The court having found, as a matter of fact, that plaintiff did first obtain it, the judgment in his behalf would be amply supported by conclusions of law and fact. The remaining conclusion of law in this connection that if defendant desired to save himself from the danger of being called upon to pay a second time he should have protected himself by an agreement with the defendant to that effect, is objectionable unless defendant authorized him to close the deal with Gleason. There was some proof to this effect, and, therefore, we cannot hold that this conclusion of law was unwarranted.
The judgment must be reversed and a new trial ordered, with costs of both courts to the defendant.