Darrow Inv. Co. v. Breyman

• Citation: 32 Wash. 234,73 P. 363
• Parties: DARROW INV. CO. v. BREYMAN.
• Decision Date: 14 July 1903
• Court: Washington Supreme Court

73 P. 363

32 Wash. 234

DARROW INV. CO. v. BREYMAN.

Supreme Court of Washington

July 14, 1903

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by the Darrow Investment Company against Arthur A. Breyman. Judgment for plaintiff, and defendant appeals. Affirmed.

Allen Allen & Stratton, for appellant.

Moore &amp Farrell, for respondent.

MOUNT, J.

This is an action to recover commissions on a sale of real estate. The complaint alleges, in substance, that in January, 1902 defendant employed plaintiff to find a purchaser of certain real estate at a specified price and terms, and agreed, if plaintiff found such a purchaser, to pay plaintiff a commission of 5 per cent. on the purchase price; that plaintiff did find a purchaser ready, able, and willing to buy on the proposed terms; and that defendant then refused to sell and to pay the agreed commission. The answer was a general denial. Upon a trial the jury found in favor of the plaintiff, and from a judgment on the verdict defendant appeals.

The only question on this appeal is based upon the refusal of the trial court to instruct the jury that if they should find from the evidence that the plaintiff, in making the proposed sale, was acting as agent for one King, the proposed purchaser, as well as for the defendant, and that the defendant was not informed of that fact, then plaintiff could not recover. The rule is that, where an agent or broker is in the secret employment of both parties, he cannot recover from either. Shepard v. Hill, 6 Wash. 605, 34 P. 159; Mechem on Agency, §§ 953, 972. But this rule does not apply where the seller is fully informed of the relation of the agent to the purchaser. Mechem on Agency, § 972; Chase v Veal, 83 Tex. 333, 18 S.W. 597; Scott v. Lloyd, 19 Colo. 401, 35 P. 733. The agent testified, in substance that in case of a sale he was to have control of the property, and plat it and sell it again for the purchaser and that he had agreed with the purchaser, also, to divide with him the commissions on the present sale; that the respondent heard the conversation and understood it. Mr. S.E. King, who desired to purchase the property, testified as follows: 'Q. As a matter of fact, Darrow was acting as your agent in this purchase, as well as Breyman's in the sale? A. Yes. Q. Do you know whether Mr. Breyman was informed of that fact, or not? A. I don't know, but I rather think so. Yes. He understood that I...