Foley v. Mathias
| Decision Date | 18 November 1930 |
| Docket Number | 40351 |
| Citation | 233 N.W. 106,211 Iowa 160 |
| Parties | F. L. FOLEY, Appellee, v. F. B. MATHIAS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wright District Court.--O. J. HENDERSON, Judge.
Action at law, to recover on a written contract for a commission for renting real estate. There was a verdict for plaintiff, and the defendant appeals. The facts appear in the opinion.
Affirmed.
Birdsall McGrath & Archerd, for appellant.
Frank D. Riley and E. A. Baldwin; for appellee.
On January 23, 1929, the plaintiff filed in the district court of Wright County, Iowa, his petition at law, in which he alleges that, on the 13th day of August, 1928, the defendant entered into a contract in writing with the plaintiff, in words and figures as follows:
"In consideration of the work, co-operation and aid given by F. L. Foley in obtaining a lease from Montgomery Ward & Co., for my property in Webster City, Iowa, I, F. B. Mathias, hereby agree, that in case said lease is completed to pay F. L. Foley two and one-half % (2 1/2%) commission of the rental for obtaining the said lease with Montgomery Ward & Co. Commission to be paid when lease is signed by both parties, said commission to be mailed to F. L. Foley c/o Dr. J. J. Foley Fort Dodge, Iowa."
The plaintiff pleads performance of his part of the contract, and that a contract of lease was entered into by the defendant with Montgomery Ward & Company, and that, as a result thereof, he is entitled to his commission, under his written contract. The defendant interposed several defenses, the principal one of which is that, at the same time the plaintiff entered into the written contract with the defendant, the plaintiff also entered into a similar contract with one Hunter, who also had property in Webster City, Iowa, available for leasing by Montgomery Ward & Company; that on that account it is claimed by the defendant, in substance, that there was a dual employment of the plaintiff; and that, inasmuch as the agent cannot serve two principals without the intelligent consent of both, the plaintiff cannot recover.
I. It is the principal contention of the appellant that the facts in this case bring it under the well recognized and firmly established rule that an agent cannot serve two principals without the intelligent consent of both, and that, if he undertakes to do so, compensation cannot be recovered. In support of this contention the following cases are cited: Casady v. Carraher, 119 Iowa 500, 93 N.W. 386; Rodenkirch v. Layton, 189 Iowa 430, 440, 176 N.W. 897; Bell v. McConnell, 37 Ohio St. 396 (41 Am. Rep. 528); Jansen v. Williams, 36 Neb. 869 (55 N.W. 279); Strawbridge v. Swan, 43 Neb. 781 (62 N.W. 199); Steele v. Crabtree, 130 Iowa 313, 106 N.W. 753; Preston v. McClelland, 196 Iowa 13, 193 N.W. 434; Rice v. Wood, 113 Mass. 133 (18 Am. Rep. 459); Young v. Hughes, 32 N.J.Eq. 372, 384; Lemon v. Little, 21 S.D. 628 (114 N.W. 1001); Loots v. Knoke, 209 Iowa 447, 228 N.W. 45.
In attempting to apply the doctrine in these cases to the case at bar, the appellant overlooks the fact that this rule applies in cases where the agent represents both parties to a contract. If the record in this case showed that the plaintiff was at the same time the agent of both the defendant in this case and Montgomery Ward & Company, in that event the rules affecting dual agency would apply. There is, however, in this record no contention, nor is there any proof, that Foley, at the time of the making of these contracts with the defendant and Hunter, was in the service of Montgomery Ward & Company. True enough it is that, in a sense, the defendant and Hunter were rivals for a lease with Montgomery Ward & Company.
The situation in this case is analogous to that which arises when a real estate agent has listed with him a number of houses for rent, and a lease for one of them is made to the customer of the real estate agent. Every owner of the houses is a rival of every other owner for the lease with the real estate agent's customer; but can it be said that, because the real estate agent has several houses listed with him, therefore the real estate agent cannot recover his commission for leasing one of them to one of his customers without the intelligent consent of both? Manifestly not.
If the rule contended for by the appellant in this case did obtain, as is well stated by the appellee, no real estate agent in Iowa could have more than one house listed in his office at one time if he expected to recover his commission for leasing the house. If the plaintiff had represented Montgomery Ward & Company, he could properly have dealt with the owner of every available piece of property in Webster City for a lease with Montgomery Ward & Company, and demand his pay from Montgomery Ward & Company for having procured a lease on any one of them. In that event, there would be no dual representation, because plaintiff would be representing Montgomery Ward & Company only. On the other hand, Foley could well represent the owner of every available piece of property in Webster City in his efforts to secure a lease for some one of them with Montgomery Ward & Company, and just so long as the plaintiff did not, at the same time, represent Montgomery Ward & Company, the dual agency rule would not apply.
There is in this contract no agreement to exclusively represent the defendant in an effort to secure a lease with Montgomery Ward & Company. The record shows without dispute that the plaintiff...
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