94 Minn. 135 | Minn. | 1905
This action was brought to recover a commission alleged to be due plaintiff for services rendered in the sale of certain land for defendant, and the sum of $50 loaned defendant at the time alleged in the complaint.
At the trial the court below, in its charge to the jury, withdrew from their consideration the evidence tending to prove the counterclaim, and directed them to disregard it. A verdict was returned for plaintiff, and defendant appealed from an order denying his motion for a new trial.
The only question for consideration in this court is whether the trial court erred in instructing the jury to disregard defendant’s counterclaim.
The evidence on the part of defendant tends to show that he was the owner of the brick block in the city of. Chicago, and was anxious to exchange the same for Minnesota farm lands; that in some negotiations with plaintiff, who had previously acted as defendant’s agent in other real estate transactions,- defendant-engaged him to exchange the property for Minnesota lands; that subsequently plaintiff effected an exchange with Grove, as already stated, and received from the latter at least the sum of $3,000 in the transaction. Plaintiff, as the representative of defendant, had exclusive charge of the negotiations, and completed the exchange, if the evidence referred to be true, without communicating to defendant the precise terms upon which it had been made, and made a profit of at least $3,000. If the case stopped here, there would be no question of the right of defendant, as a matter of law, to recover the profits thus made. If plaintiff was the agent of defendant, as claimed, whatever profit he realized as a result of the transaction belonged to his principal. It is elementary, and a rule of universal
But the evidence on this subject is conflicting. That offered by plaintiff tended to show that whatever he received in the transaction was paid him for services rendered to Grove; that in negotiating the exchange of the properties in question he was the agent of Grove, and not of defendant. If plaintiff’s claim in this respect be the truth — if he was in fact the agent of Grove, and not of defendant — the latter has no claim to the money received by him, and cannot recover on his counterclaim. But the different contentions of the parties in this respect presented a question for the jury to determine, and it was for them to say whether plaintiff represented and acted for defendant, or whether he was the agent of Grove. If he was the agent of defendant, it is clear that recovery may be had upon the counterclaim.
The theory of the trial court in withdrawing the counterclaim from the jury seems to have been that plaintiff was, under the evidence, acting in a double capacity as agent for both parties, and that his conduct amounted to a fraud upon the rights of defendant,' for which no recovery can be had against him except in an action for tort, and that a tort is not a proper counterclaim in this action — one founded on contract. This position is clearly not sound. This action, it is true, is founded on contract, but the counterclaim, if defendant’s contention as to the relations existing between the parties be true, arises also in contract. Plaintiff was the agent of defendant for the purpose of exchanging the properties, and that relation was contractual, and the profits made by plaintiff as such agent belonged to defendant, and are clearly the proper subject of counterclaim.
But, even if there was fraud on the part of plaintiff, so as to give defendant the right of action to recover damages, he could, at his election, waive the tort, and recover as upon implied contract, or for money had and received (McArthur v. Murphy, 74 Minn. 53, 76 N. W. 955; Downs v. Finnegan, 58 Minn. 112, 59 N. W. 981); and it was not necessary, to entitle him to so elect, that he specially plead all the facts
Order reversed, and new trial granted.