Barry v. Schmidt

• Decision Date: 20 February 1883
• Citation: 57 Wis. 172,15 N.W. 24
• Parties: BARRY v. SCHMIDT.
• Court: Wisconsin Supreme Court

57 Wis. 172

15 N.W. 24

BARRY

v.SCHMIDT.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Appeal from circuit court, Trempealeau county.

E. Q. Nye, for respondent, Thomas Barry.

Allen & Williams, for appellant, Caroline Schmidt.

ORTON, J.

The first error assigned is that the circuit court refused to order a nonsuit on the case made by the plaintiff.

On behalf of the plaintiff it was substantially proved that he was employed by the defendant to find a purchaser for her land at the price of $1,500, for which service she agreed to pay him the sum of $100; that the plaintiff, on behalf of the defendant, proposed to sell the land to one Thomas Troog for that sum, and that Troog looked at the land, accepted the proposition, and authorized the plaintiff to sign the contract for him on such purchase, and that he did so sign the name of Troog to the contract in the presence of the defendant, and Troog afterwards paid up for the land at that price, and received a deed therefor from the defendant. It is contended by the learned counsel of the appellant that this evidence placed the plaintiff in the inconsistent attitude of agent for both the defendant as the seller, and Troog as the purchaser, of the land, and that he can, therefore, recover from neither for his services. It is perfectly well settled by the decisions of this court, as well as by the current of authority elsewhere, that the same person cannot be employed by the seller and purchaser of the same land, by the first to sell and by the other to purchase, where their interests in the services of such person are in any respect adverse or antagonistic, or where his will, discretion, or judgment is to be, or may be, used adversely to both, and recover for his services from either. Myro v. Hanchett, 39 Wis. 419;S. C. 43 Wis. 246.

This principle is not controverted by the learned counsel of the respondent, but his contention is that this case, so far as made by the evidence, falls within the exception equally well established by the authorities, that the agent may be employed by and recover from both parties as a mere “middle-man” to bring them together, and when he has nothing to do in fixing the terms of the bargain, as in Herman v. Martineau, 1 Wis. 151, or that the agent may be employed by the seller to find a purchaser at $15 per acre for a commission of 5 per cent., and may recover such commission if he bring the parties together and the sale is consummated by them either at that price or less, even though the agent himself becomes interested in the purchase with the knowledge of the seller, as in Stewart v. Mather, 32 Wis. 344. Chief Justice DIXON says in his opinion in that case: “A broker whose undertaking merely is to find a purchaser at a price fixed by the seller, or at a price which shall be satisfactory to the seller when he and the purchaser meet, is in reality only a ‘middle-man,’ whose duty is performed when the buyer and seller are brought together, and as to whom the policy of the law which excludes double compensation has been considered inapplicable;” and cites Mullen v. Keitzleb, 7 Bush, 253;Kupp v. Sampson, 16 Gray, 398; and also Herman v. Martineau, supra.

The general principle and the exception are well established, both by reason and authority. When an agent is thus employed by one party to sell and by the other to purchase, and is vested with any discretion or judgment in the negotiation, his duties are in conflict, and in respect to adverse interests, and he cannot fairly serve both parties. In such case it is his duty to obtain the best possible price for the seller, and the lowest possible terms for the buyer. If the contract to employ and pay a compensation by either party is made with the knowledge and assent of the agent's employment by the other party in the same transaction, of course he cannot complain, and should be held to pay the compensation agreed upon; but when otherwise it is a fraud upon the...