106 A. 509 | Conn. | 1919
The contract did not give the plaintiff the exclusive right of sale. To have this effect the right *463
must be given to the broker in unequivocal terms or by necessary implication. Hungerford v. Hacks,
It is also well settled that a broker cannot put himself in a position antagonistic to his principal's interest.Ebert v. Haskell,
The appeal turns, substantially, upon the answer to the question, Was the plaintiff the procuring cause of the sale? The trial court found, as a conclusion of fact from subordinate facts set forth in the finding, that the plaintiff was the procuring cause. This conclusion may be reviewed on appeal. Hoadley v. SavingsBank of Danbury,
Yet the plaintiff claims that because pursuant to the secret agreement between Ehlers and Robertson the property was immediately conveyed by Ehlers to Robertson, the defendant should be held liable for commission as upon a sale by her to Robertson under the modified agreement. The finding is clear that the plaintiff did not in fact procure Ehlers as a purchaser. The plaintiff in no way intervened so as to bring Ehlers' attention to the property. But the plaintiff claims that *465
because he had been in negotiations with Robertson and Robertson made the contract with Ehlers to buy, therefore the plaintiff was the procuring cause of Ehlers' purchase. The plaintiff had nothing to do with the sale in fact made, nor did he know of it until after the sale had been consummated. Neither the plaintiff nor Robertson introduced Ehlers to the defendant. Ehlers approached the defendant entirely as an original, independent purchaser and secured his contract in that guise. The general rule is stated in 9 Corpus Juris, 614, in this way: "The facts that a person with whom the broker unsuccessfully negotiated for a sale called the attention of another to the property, and that the other finally bought it, do not give the broker a right to a commission." This rule is based upon the well-established distinction between what the books call thecausa causans and the causa sine qua non. The cases are numerous. We mention Burchell v. Gowrie andBlockhouse Collieries, L. R. (1910) App. Cas. 614, 624;Imrie v. Wilson, 3 Dominion L. R. 826. In Gleason v.Nelson,
Perhaps we should here notice our own case ofLincoln v. McClatchie,
The complaint is based upon a sale by the defendant to Robertson, and the finding shows the final arrangement between the plaintiff and defendant was based on the possible ability of the defendant to effect a sale to Robertson.
The plaintiff argues that the facts show that Ehlers was the undisclosed agent of Robertson. Whether the arrangement made between Robertson and Ehlers was a contract of purchase and sale, or a contract of agency, it is not necessary now to decide. If it was a contract of purchase and sale, then clearly the plaintiff would not be entitled to recover, for the sale would have been to Ehlers and not to Robertson. If, on the contrary, *467
Ehlers was in fact the undisclosed agent of Robertson, still the plaintiff cannot recover. The case is not one of agent for an undisclosed principal, that is, where the seller is aware that he is dealing with one who is acting as an agent, only the principal being undisclosed. In such case the law seems clear that either the agent or the principal may sue upon the contract. Rhoades v.Blackiston,
This, however, is not a case of one acting as agent, but not disclosing the principal. If we assume that as between Ehlers and Robertson the relation of principal and agent existed, not only was this fact not known to the defendant, but was purposely concealed from her by both Ehlers and Robertson. So that the most that the plaintiff can claim is that this is a case of undisclosed agency. The difference between these two situations must be kept in mind in determining the liability and rights of the vendor. Furthermore, we are not now deciding the rights of Robertson against Ehlers. The rule of law as frequently stated with reference to the rights of an undisclosed principal against the vendee, must be critically examined to determine whether the rule as stated is applied with reference to an undisclosed agency, or to a case of disclosed agency but undisclosed principal. Rhoades v. Blackiston,
There is another point of view which shows that the plaintiff cannot recover. Should it still be held that the defendant in law, though certainly not in fact, sold to Robertson because Robertson subsequently obtained title to the property, the plaintiff must, as matter of law, be held to have adopted the method by which Robertson subsequently obtained title. This method was, as we have seen, by secretly putting forward a third party as a purchaser in opposition to Robertson, to obtain the property at a less price than Robertson believed he could buy it for, and by adopting Robertson's statement to the defendant upon specific inquiry by the defendant if he still wanted the property, that he did not want to buy. To be sure the plaintiff did not in fact do this, but he must adopt this conduct, antagonistic to the interest of his client, to establish that he was the procuring cause of the sale the defendant in fact made. This he will not be allowed to do. To compel the defendant to pay commission *470
on a sale so obtained, when she, though unsuccessfully, took every possible means to make a sale, as she supposed, which would entitle the plaintiff to his commission, would inflict an undeserved loss upon her. The sale in fact was made through concealing the identity of the real purchaser and so leading the defendant to sell at a less price. Veasey v. Carson,
Perhaps it is not irrelevant to call attention to Gormley
v. Dangel,
We agree with the plaintiff's claim, that the defendant was not released from the obligation to pay a commission merely from the fact that she sold for a less price than that to which the broker was limited; nor was she released by the mere fact that she in person made the sale; but we hold that the defendant did not as matter of fact sell to Robertson, and that, under the settled rules of agency, the plaintiff was not the procuring cause of the sale to Ehlers in any such sense as will entitle him to a commission.
There is error, the judgment is reversed and the cause remanded with directions to enter a judgment for the defendant.
In this opinion the other judges concurred.