Mitchell v. Schreiner, 43 Pa. Super. 633

Mitchell v. Schreiner

43 Pa. Super. 633 | Pa. Super. Ct. | 1910

Opinion bx

Rice, P. J.,

It is a rule of public policy, subject to such exception as we are about to notice, that an agent for the sale of property cannot at the same time act as agent for the purchaser thereof and become entitled to compensation from both vendor and purchaser or from either: Everhart v. Searle, 71 Pa. 256. Whilst this rule may be waived by an express agreement between the parties, yet it is well settled that such agreement cannot be inferred either from knowledge of the fact that the rule has been violated or from mere silence or failure to dissent at the time, or from all these combined. Nothing short of “clear and satisfactory proof of an agreement” to waive the rule can be regarded as sufficient for this purpose: Rice v. Davis, 136 Pa. 439; Penna. R. R. Co. v. Flanigan, 112 Pa. 558; Finch v. Conrade’s Executor, 154 Pa. 326; Marshall v. Reed, 32 Pa. Superior Ct. 60; Evans v. Rockett, 32 Pa. Superior Ct. 365. Viewing the answers to the plaintiff’s points, quoted in the first and second assignments of error, in the light of these principles, we are constrained to the conclusion that the instructions did’ not go far enough to put clearly before the jury the rule applicable to the case, if they believed the defendant’s testimony. Standing by themselves they were calculated to create the impression that if the plaintiff disclosed to the defendant the fact that he was acting for both parties the rule under consideration would not prevent recovery. The same idea was conveyed more clearly by instructions quoted from the general charge in the fourth assignment. Referring to *638the testimony of the plaintiff to the effect that he told the defendant that he would receive a commission from Cullen, the other party to the proposed exchange, the learned judge said: “If that is true, Mr. Schreiner had knowledge that Mr. Mitchell was acting for both parties, and the fact that he was acting for' both parties would not, under these circumstances, prevent him from recovering a commission from Mr. Schreiner.” Then after referring to the defendant’s testimony in denial of what the plaintiff had testified to, the learned. judge instructed the jury that the first question for them to determine was whether the plaintiff informed the defendant that he was acting for Cullen as well as himself, and that if the plaintiff did not inform the defendant of that fact he could not recover, but if he did inform him he could recover, unless the other defense, not necessary to be noticed here, was made out. It is thus seen that the plaintiff’s right to recover was made to depend only on the question as to what he informed the defendant, and not upon the question whether the defendant expressly agreed to the double employment and the double compensation. It is apparent that this assignment cannot be overruled without establishing a precedent that would be in irreconcilable conflict with the rule laid down in Rice v. Davis and the cases that follow in its lead. Nor was the error,cured, by the affirmation of the defendant’s first point. The jury would endeavor to obey all the instructions of the court, and in doing so might naturally suppose that they might infer the defendant’s assent from the mere fact of his silence and failure to dissent when, as alleged,, the plaintiff informed him that he was employed by the other party. In concluding the opinion in Rice v. Davis, the court said: “Rules of law, such as that under consideration, intended to be preventive of the possibility of wrong, rather than remedial of actual wrong, should be rigidly enforced, unless it clearly appears that the. parties, for whose protection they were intended, have, with full knowledge of all the circumstances, agreed to waive their rights there*639under.” The jury might have inferred, from the instructions contained in the general charge and the answers to the plaintiff’s first two points that the rule is less rigid than it is declared to be in the cases cited, and as it is impossible to determine with certainty whether they followed those instructions, or the instructions intended to be conveyed by the affirmation of the defendant’s point, the case must go back for retrial.

The judgment is reversed and a venire facias de novo awarded.