Clopton v. Meeves

Citation133 P. 907,24 Idaho 293
PartiesR. H. CLOPTON et al., Respondents, v. PETER MEEVES, Appellant
Decision Date24 June 1913
CourtUnited States State Supreme Court of Idaho

VARIANCE BETWEEN PLEADINGS AND PROOF-REAL ESTATE BROKER-BROKER AS AGENT OR VENDOR-MIDDLEMAN-RIGHT TO COMMISSIONS-DOUBLE AGENCY.

1. Where a plaintiff in an action to recover commissions for the sale of real estate alleges that he was employed as a real estate broker and the defense is interposed that he had acted in a dual capacity and had collected commission from the purchaser, if the proofs justify it, the court may properly find that the plaintiff was a middleman employed only to bring the vendor and purchaser together, and under the provisions of secs. 4225 and 4226 of the Rev. Codes the court might order the pleadings immediately amended to conform to the proofs.

2. If a real estate agent or broker is employed as a mere middleman for the purpose only of bringing vendor and purchaser together and has no further duty imposed upon him by his contract of employment, and does not undertake to advise or counsel either side, and the parties so understand his employment and are so advised, he may charge and receive a commission from both vendor and purchaser.

3. If a real estate broker who claims to have been only a middleman has assisted either party in effecting or negotiating a trade or sale, or has made representation to either as to the value or advantages of the property of the other, he has to that extent made himself a partisan agent of the one or the other and can no longer rightfully or lawfully represent the other party to the transaction.

4. The real purpose of the distinction made in the law between an agent and a middleman is to secure honest, fair and open service from the agent and to enable both vendor and purchaser to know whether the broker is acting as a partisan agent or merely for the purpose of bringing the parties together and from whom he is expecting compensation, and to remove from the agent as far as possible any temptation to serve one party to the detriment or disadvantage of the other.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Action for debt. Judgment for plaintiff. Defendant appealed. Reversed.

Reversed and remanded with direction. Costs awarded in favor of appellant.

Garland Draper and W. A. Ricks, for Appellant.

A complaint setting up a cause of action for services rendered as brokers and agents will not support a judgment based on a finding that the services rendered were really as middlemen. (Uhrlaub v. McMahon, 15 Idaho 349, 97 P. 784; Stickney v. Hanrahan, 7 Idaho 425, 63 P. 189; Davis v. Devanney, 7 Idaho 742, 65 P. 500; In re Evans (Utah), 130 P. 224.)

The material findings must not only be supported by the evidence but must substantially conform to the allegations of the complaint and be consistent with and uncontradictory of other findings. (Felton v. Le Breton, 92 Cal. 457, 28 P 490; Hendy Co. v. Pacific Co., 99 Cal. 421, 33 P. 1084.)

The exact question presented herein of the right to recover as middleman in an action for services as broker has been raised and decided in numerous cases which fully sustain our contention. (Southack v. Lane, 32 Misc. 141, 65 N.Y.S. 629; 19 Cyc. 276; Levy v. Spencer, 18 Colo. 532, 36 Am. St. 303, 33 P. 415.)

"When a person is employed to act as agent of another in dealing with a third person, and the nature of the employment is such that he is required to exercise judgment, discretion or personal influence in the execution of the agency, he cannot act also as the agent of the third party in the transaction without the knowledge and consent of his principal. (1 Clark & Skyles, Agency, par. 364.) A broker comes within this class, and in case of double employment he cannot collect therefor. (Clark v. Allen, 125 Cal. 277, 57 P. 985.) Double agency will not be permitted when broker has been employed as agent of either party, so that such employer expects and depends upon such employee to act in his interests solely and secure the most advantageous deal for him. (Walker's Real Estate Agency, 51; Farnsworth v Hemmer, 1 Allen, 494, 79 Am. Dec. 756.)

The circumstances under which this rule has no application and the exceptions thereto are set forth and well stated in Synnott v. Shaughnessy, 2 Idaho 122, 7 P. 82.

The respondents entered the employment of appellant in the fiduciary relationship of principal and agents. Their undertaking to make a sale of his property of itself created this relationship. (Langford v. Issenhuth, 28 S.D. 451, 134 N.W. 894; Robinson v. Clock, 38 A.D. 67, 55 N.Y.S. 976; Friar v. Smith, 120 Mich. 411, 79 N.W. 633, 46 L. R. A. 229; Walker v. Osgood, 98 Mass. 348, 95 Am. Dec. 168; Raurer etc. Co. v. Bradbury, 3 Cal.App. 256, 84 P. 1009; Scribner v. Collar, 40 Mich. 375, 29 Am. Rep. 541; Burnham etc. Co. v. Ranier, 59 Fla. 179, 52 So. 622; Tasse v. Kindt, 145 Wis. 115, 128 N.W. 927, 31 L. R. A., N. S., 1225; Walker's Real Est. Agency, 51, 1088.)

And as long as such fiduciary relationship continued, they could not serve in the capacity of middlemen in matters involving the property listed with them as aforesaid, and there can be no recovery for services rendered as middlemen under such circumstances. (Dennison etc. Co. v. Aldrich, 114 Mo.App. 700, 91 S.W. 1026; Raurer etc. Co. v. Bradbury, 3 Cal.App. 256, 84 P. 1009; Southack v. Lane, supra; Collins v. McClurg, 1 Colo. App. 348, 29 P. 301; Pinch v. Morford, 142 Mich. 63, 105 N.W. 22; Hannan v. Prentis, 124 Mich. 417, 83 N.W. 102; Braden v. Sherer (Tex. Civ. App.), 128 S.W. 1159; Scott v. Kelso (Tex. Civ. App.), 130 S.W. 610.)

There must be an affirmative and clear showing that each of the parties had a full knowledge of all the circumstances and assented to the double employment. The burden is on the plaintiff to make this showing. (Bell v. McConnell, 37 Ohio St. 396, 41 Am. Rep. 528; Hannan v. Prentis, 124 Mich. 417, 83 N.W. 102; Young v. Trainor, 158 Ill. 428, 42 N.E. 139; Lynch v. Fallon, 11 R. I. 311, 23 Am. Rep. 458; Green v. Southern State Lumber Co., 163 Ala. 511, 50 So. 917; 19 Cyc. 227, and citations.)

The rule is that the broker cannot recover as middleman when he negotiates the exchange and in some degree influences the parties to make the trade, and thereby contributes some influence in the matter. (Lloyd v. Colson, 5 Bush, 587; Hobart v. Sherburne, 66 Minn. 171, 68 N.W. 841.)

There was no contract for services or compensation as middlemen upon which respondents can base action. (Clark v. Allen, 125 Cal. 277, 57 P. 985; 19 Cyc. 234; Childs v. Ptomey, 17 Mont. 502, 43 P. 716.)

Harry S. Kessler, for Respondents.

If it be conceded that we ask for money due as brokers, then their answer amounts to a denial that they were brokers, and couples with such denial a statement to the effect that they were middlemen and had been paid in full. (Ach v. Carter, 21 Wash. 140, 57 P. 344; McGrath v. Gilmore, 15 Wash. 558, 46 P. 1032; Johnson v. Polhemus, 99 Cal. 240, 33 P. 908.)

"The plain intention of our law is that when the parties are once in court, all conflicting claims shall be settled between them arising out of the subject matter involved in the issues." (Burke Land etc. Co. v. Wells-Fargo & Co., 7 Idaho 42, 60 P. 87; Grangers' Union v. Ashe, 12 Cal.App. 757, 108 P. 533.)

"If the complaint can be construed favorably to the upholding of the judgment, such construction must be adopted." (San Gabriel Valley Bank v. Lake View Town Co., 4 Cal.App. 630, 89 P. 360; Kansas City & S.W. Ry. Co. v. Farnsworth, 39 Kan. 356, 18 P. 202.)

The later authorities seem to practically agree upon a well-settled rule for distinguishing in a particular case whether or not the parties involved are employed and serving as brokers or middlemen. (McLure v. Luke Admr., 154 F. 647, 84 C. C. A. 1, 24 L. R. A., N. S., 659; Leathers v. Canfield, 117 Mich. 277, 75 N.W. 612, 45 L. R. A. 44; Herman v. Martineau, 1 Wis. 151, 60 Am. Dec. 368; Cox v. Haun, 127 Ind. 325, 26 N.E. 822; Synnott v. Shaughnessy, 2 Idaho 111, 122, 7 P. 82; Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058, 107 N.W. 384, 5 L. R. A., N. S., 112, 12 Ann. Cas. 800.)

AILSHIE, C. J. Stewart, J., concurs.

OPINION

AILSHIE, C. J.

This action was instituted for the collection of a commission for the exchange of real property. Plaintiffs alleged. "That on or about the 1st day of February, 1912, the defendant listed the said real estate with the plaintiffs for sale or trade, and that said plaintiffs on or about the 10th day of July, 1912, found a purchaser who was ready, able and willing to purchase and exchange said land at a price agreeable to the defendant." The defendant alleged that the plaintiffs acted for and represented the purchaser and received a commission from the party to whom defendant made the exchange and was the agent of the other party, and that the plaintiffs had thereby precluded themselves from collecting a commission from the defendant.

It appears that about February, 1912, the appellant listed his land for sale or trade with the respondents and that no particular understanding or agreement was had with reference to the commission or compensation to be paid or the scope of the agency or authority of the real estate brokers. It appears, however, that the respondents were in the real estate business known and understood as ordinary real estate agents are known and understood in the business. Sometime in May, 1912, appellant noticed an advertisement in a local paper wherein certain property was offered for sale or trade, and appellant immediately went to respondents' office and asked that one of the firm go at once and look at the property with a view to securing the same in exchange for a certain portion of...

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6 cases
  • Moore v. Turner
    • United States
    • West Virginia Supreme Court
    • 23 Junio 1952
    ...the parties in a position where they may make their own contracts, and he may later receive a commission from both.' In Clopton v. Meeves, 24 Idaho 293, 133 P. 907, 909, the court said: 'A distinction has been drawn by the courts between what is commonly known as a real estate broker or age......
  • Snoderly v. Bower
    • United States
    • Idaho Supreme Court
    • 26 Junio 1917
    ... ... according to the evidence, or may order an immediate ... amendment, without costs." In Clopton v ... Meeves, 24 Idaho 293-298, 133 P. 907, this court, ... applying the above sections, said: "Under the liberal ... rule adopted by our ... ...
  • Homefinders v. Lawrence
    • United States
    • Idaho Supreme Court
    • 16 Febrero 1959
    ...with or without the other's consent, if his duty is simply to bring the parties together. [Citations.]' See also Clopton v. Meeves, 24 Idaho 293, 133 P. 907; Self v. Gilbert, 105 Okl. 140, 231 P. 870; Vickery v. Valdez, 113 Cal.App. 135, 298 P. 151; McConnell v. Cowan, 44 Cal.2d 805, 285 P.......
  • Milwaukee Land Co. v. Bogle
    • United States
    • Idaho Supreme Court
    • 8 Julio 1939
    ... ... (Sec. 5-902, I ... C. A.; Pennsylvania-Coeur d'Alene Min. Co ... v. Gallagher, 19 Idaho 101, 112 P. 1044; Clopton v ... Meeves, 24 Idaho 293, 133 P. 907; Mole v ... Payne, 39 Idaho 247, 254, 227 P. 23; Harrison v ... Russell & Co., 17 Idaho 196, 203, 105 P ... ...
  • Request a trial to view additional results

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