Charge numbered 5, above quoted, correctly states the law, where, as in this case, it appears that the brokers were charged with duties which required the exercise of their discretion. A real estate agent, who receives a commission from both the lessor and the *Page 628
lessee of a real estate lease, must prove that such relation was known by both parties, and that they both assented thereto.Skirvin v. Gardner et al.,
"A broker, acting for both parties in effecting an exchange of property, can recover compensation from neither, unless his double employment was known and assented to by both."Walker v. Osgood,
One cannot act as agent for both seller and purchaser, unless both know of the assent to his undertaking, and receive compensation from both. Holcomb v. Weaver,
But defendant did not plead that plaintiffs, unknown to him, were also to be paid a commission by the lessor, or that he assented thereto, and the court committed reversible error in giving said instruction numbered 5.
In Chambers v. Van Wagner,
"An instruction upon a material issue, not raised by the pleadings, when excepted to, is reversible error."
See, also, America Jobbing Association v. James,
Inasmuch as the giving of charge numbered 5 was reversible error, it is not thought necessary to consider the other assignments of error presented, and hence same will not be considered. *Page 629
For the error pointed out, this case should be reversed and remanded.
By the Court: It is so ordered.