Lincoln v. McClatchie

36 Conn. 136 | Conn. | 1869

Park, J.

If Burdick, the purchaser, had gone to the office of the plaintiff to ascertain what real estate there was for sale and there obtained all the information that was communicated to Goodwin, and in consequence thereof had opened a negotiation with the defendant to purchase and had finally purchased the premises, the counsel for the defendant concede that he would have been liable. Murray v. Currie, 7 Car., & Payne, 584; Wilkinson v. Martin, 8 id., 1; Burnett v. Bouch, 9 id., 620.

But the claim is, that the fact that the information that Burdick received was communicated to him by Goodwin, who received it from the plaintiff while he was not acting as the agent of Burdick in procuring it, materially alters the eliaractef of the transaction, and renders the defendant not liable* to the plaintiff.

It appears that Goodwin was the personal friend of Burdick, and knew that the latter wished to purchase a dwelling house. His friendship prompted him to search for a suitable place for his friend that was for sale. He saw an advertisement of the plaintiff of houses for sale upon Canton street, and went to his office for information about them. He there learned that the defendant had a house for sale, and was told the price. This information he communicated to Burdick, and informed him that the house was in the plaintiff’s hands for sale. Burdick thereupon requested Goodwin to examine the premises and report to him. Goodwin did so, and advised Burdick to purchase. Burdick then examined the house himself, and soon after entered into negotiation with the defendant to purchase, which resulted in a sale.

Had Burdick in the first instance requested Goodwin to do what was done by him in this transaction, the case would have stood precisely as if Burdick had procured the information himself from the plaintiff, on the principle qui facit per alium facit per se,, and the defendant in that case would clearly have been liable. Is the case materially different ? Goodwin acted for Burdick in procuring the information. He did not casually obtain it, but went to the office of the plaintiff to ascertain what intelligence he had to disclose. Burdick acted upon the information' when communicated to him by Goodwin, knowing from what source it had been obtained. He adopted the acts of Goodwin, which was equivalent to a previous request to perform the acts. The plaintiff was pursuing the business of a broker in giving the information, and Goodwin received it for Burdick in the capacity of a messenger and conveyed it to him. Suppose Goodwin had informed the plaintiff for what purpose he inquired, and the information had been given for the purpose of being communicated to Burdick, would the case for the plaintiff have been stronger ? The information was given in order to procure a purchaser, and can the fact that Goodwin did not make known for whom he was acting make any material difference, when his act operated directly to bring the buyer and seller together ? They show that the plaintiff was the procuring cause of the sale, as much as would have been the case if Goodwin had made known his business, or Burdick had gone in person to the office of the plaintiff and obtained the information himself.

The defendant further claims, that he specially reserved the right to sell the property himself, without being liable to pay a commission to the plaintiff. We think the proper construction of the understanding was, that the defendant should have the right to sell to a purchaser found by him independently of the plaintiffs procurement.

Eor these reasons we think there is manifest error in the judgment complained of.

In this opinion the other judges concurred.