Bowers & King v. Roth
Decision Date | 16 November 1920 |
Docket Number | 33615 |
Citation | 179 N.W. 859,189 Iowa 1264 |
Parties | BOWERS & KING, Appellees, v. F. A. ROTH, Appellant |
Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--H. F. WAGNER, Judge.
ORIGINAL action upon a promissory note in justice of the peace court. Judgment for plaintiff, and defendant appealed to the district court, where a trial was had to a jury, resulting in a verdict and second judgment in favor of plaintiff. Defendant appeals.
Reversed.
Frank Bechly and M. W. Hyland, for appellant.
Boyd & Boyd, for appellee.
It is conceded that the consideration of the note was services rendered to defendant in a real estate transaction with one George Owens. It is further admitted that plaintiff was the agent of both the defendant and Owens, and that the latter paid the agreed commission. Defendant alleged, in his answer to plaintiff's petition, filed in justice of the peace court, that plaintiff represented Owens without his knowledge, and also that neither party knew that plaintiff was representing the other. Owens was called as a witness on behalf of defendant, and was asked to state whether he paid plaintiff a commission in the transaction in question. Objections to this and other questions seeking to show that plaintiff represented Owens were sustained. The defendant then offered to prove by the witness that plaintiff acted as agent for him (witness), and that, at the time of the transaction, and when the note in suit was executed, he had no knowledge that plaintiff was receiving a commission from the defendant. Objection that this testimony was incompetent immaterial, and irrelevant, and did not tend to support any issue in the case, was sustained by the court. Defendant filed a motion for new trial, upon the ground, among others that the verdict of the jury was not sustained by the evidence, and that the court committed error in excluding the testimony of Owens.
Contracts by which real estate and other agents agree and seek to represent and receive a commission from both the buyer and seller, are quite uniformly held to be contrary to public policy and good morals, and a recovery will be permitted thereon only when both principals are shown to have had knowledge thereof. Rasmussen v. Hansen, 176 Iowa 26, 157 N.W. 154; Rodenkirch v. Layton, 189 Iowa 430, 176 N.W. 897; Murphy v. Albany P. Dev. Co., 169 Iowa 542, 151 N.W. 500; Lindt v. Schlitz Brewing Co., 113 Iowa 200, 84 N.W. 1059; Glenn v. Rice, 174 Cal. 269 (162 P. 1020); Hoffhines v. Thorson, 92 Kan. 605 (141 P. 253); Dennison v. Gault, 132 Mo.App. 301 (111 S.W. 844); Bell v. McConnell, 37 Ohio St. 396 (41 Am. Rep. 528); Friar v. Smith, 120 Mich. 411 (79 N.W. 633); Sullivan v. Tufts, 203 Mass. 155 (89 N.E. 239); Rice v. Wood, 113 Mass. 133 (18 Am. Rep. 459); Howard v. Murphy, 70 N.J.L. 141 (56 A. 143); Campbell v. Baxter, 41 Neb. 729 (60 N.W. 90); Green v. Southern States Lbr. Co., 141 Ala. 680 (37 So. 670); Chapman v. Currie, 51 Mo.App. 40.
If, therefore, only one of the parties knows of the dual agency, no recovery can be had from either. Glenn v. Rice, and other cases cited, supra. It is not sufficient if the proof shows only that the defendant knew of and consented to the arrangement by which the agent is employed to represent both parties. As was said by the Supreme Court of California in Glenn v. Rice, supra:
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