184 A.D. 204 | N.Y. App. Div. | 1918
The complaint was dismissed at the close of plaintiff’s case on the ground that plaintiff, who claimed commissions by reason of the fact that as an advertising broker he had procured for the defendants an advertising contract from the Home Guardian Company, had failed to disclose to the defendants that he was an agent of the Home Guardian Company and had received commissions from them in connec
The learned trial justice was of the opinion that the services rendered by the plaintiff to the defendants and to the Home Guardian Company were identical and that plaintiff’s failure to disclose his contract with the Home Guardian Company disentitled him to recover a commission from the defendants. The services were not identical, for in addition to plaintiff’s negotiating the contract for the parties as an advertising broker, the plaintiff performed other services for the Home Guardian Company; as above stated, he prepared their advertising matter and took care for them of the matter of giving instructions for the insertion of the advertising, the space that was to be used and rendered kindred services. Neither was the plaintiff broker required as a matter of law to disclose his agency for the Home Guardian Company. (Knauss v. Krueger Brewing Co., 142 N. Y. 70.) Such a disclosure is required in a case where trust and confidence are reposed in the broker by the party sought to be charged and where such party relies upon the judgment of the broker, but not in a case where the matter involves merely the negotiation of a contract and the party sought to be charged relies solely on his own judgment and reposes no special trust or confidence in the broker. As the case appeared at the conclusion of plaintiff’s testimony, it clearly appeared that the defendants acted solely upon their own judgment; that they brought into the matter a real estate man in whose judgment they had confidence; that they sent such representative to inspect the property; that they acted upon his report, and that they dictated the price to be charged for the advertising. Furthermore, there was evidence entitling the plaintiff, on this dismissal, to the inference that the defendants knew that he was the agent of the Home Guardian Company and was preparing the advertising matter for that company prior to either payment on account of brokerage, from which ratification of plaintiff’s acting in a dual capacity might be found.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Laughlin, Smith and Page, JJ., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event.