141 A. 39 | Pa. | 1927
Argued December 8, 1927. Plaintiff, a broker, was engaged as agent to sell real estate owned by defendant and others. Early in October, defendant offered, through a "blind advertisement" in a newspaper, a property for sale. Plaintiff, by letter of October 5th, asked him for full particulars regarding the property, stating, "I represent a client who is very much interested." At an interview between the parties on October 9th, defendant placed the property with him for sale, agreeing to pay 2 1/2 % commission. The price was fixed at $250,000, but defendant indicated that an offer around $225,000 would be accepted; the property, however, was not to be sold for less than the latter figure. Plaintiff, on October 12th, having received an offer of $220,000 from Ingber Co., submitted it the following day to defendant. It was accepted, plaintiff showing a copy of the receipt given by him to Ingber Co. Its material part reads: "Messrs. Ingber Co., I hereby acknowledge receipt of your check for $5,000 dated 10/12/22, as a deposit for the purchase of 914 Walnut Street at the price of $220,000 or lower, subject to the approval of the owner Arthur I. Fink. Morris A. Sarshik, Agent." Arrangement was then made for a further meeting, which defendant's wife was to attend and execute with him the contract of sale.
The agency was not exclusive, defendant having another person engaged at the same work. It was through the latter's efforts that the property was sold on October 13th, for $225,000 to other parties. Defendant then notified plaintiff he was no longer interested in a sale through him as the property was sold through another person, and declined to keep the engagement arranged for. At the trial, defendant denied he agreed to accept a lower figure, or that any purchaser, willing to buy on terms satisfactory to him, had been introduced by plaintiff. Further, while acting as agent for defendant, plaintiff was engaged in a similar capacity for *260 his purchasers, and as a matter of law was not entitled to recover any commission.
The court below submitted the question of dual agency and defendant's knowledge of it to the jury in a charge that was free from error. A verdict was found for plaintiff. It is now urged these questions were for the court to determine.
The oral testimony and the inference from the receipt are not so persuasive as to an agency between plaintiff and Ingber Co. that it should be determined by the court. The mere fact that a broker has a client will not alone support it.
Assuming the jury found a double agency, the legal principle controlling is that, as a rule of public policy, an agent for the sale of property cannot at the same time act as agent for the purchaser and become entitled to compensation from both vendor and purchaser or from either: Everhart v. Searle,
In Mitchell v. Schreiner,
There should be no question about the principal's knowledge, and, where this is clearly shown, and, notwithstanding that knowledge, the parties, without protest, continued their negotiations, again agreeing to pay commissions, the contract will be sustained: Mitchell v. Schreiner, supra. Bearing on the question of knowledge and waiver, plaintiff, by the terms of the contract, had discretionary powers between $250,000 and $225,000. That is conceded. Plaintiff explains his first letter as to having a party interested that Ingber Co. was not the party. The letter was a customary method of securing business; his proposed purchaser came on the scene later, as shown by the receipt. Even if it be a necessary inference from this receipt that plaintiff was acting for Ingber Co., though it undoubtedly is susceptible of another meaning, there was evidence that *262 defendant, with full knowledge of it, again agreed to pay the commission and to return with his wife to close the deal. That figure was lower than the price plaintiff was authorized to sell for, but the defendant agreed to accept it, and only sold later at an advance of $5,000. The case, on both questions, was for the jury, under the strictest instruction from the court, who should and did charge the jury in explicit language as to their duty.
The error in the case lies in the cross-examination of the defendant by the trial judge. Defendant had testified at a previous trial that he was not present at the important meeting of October 13th, and was not in plaintiff's office on that day. At the present trial, he recanted that testimony and admitted his presence there. He said the mistake was "just a slip in cross-examination," but the trial judge, indignant at what appeared to him as an evident fabrication, cross-examined so severely that we do not feel defendant had any chance thereafter with the jury, although the learned trial judge, realizing his mistake, endeavored to correct it in his charge. This attitude of the trial judge, not purposely assumed, calls for another trial: Commonwealth v. Myma,
The judgment is reversed and a venire facias de novo is awarded.