Friar v. Smith
| Decision Date | 19 June 1899 |
| Citation | 79 N.W. 633,120 Mich. 411 |
| Court | Michigan Supreme Court |
| Parties | FRIAR ET AL. v. SMITH. |
Error to circuit court, Kent county; Allen C. Adsit, Judge.
Action by James Friar and another against Henry C. Smith. There was a judgment for plaintiffs, and defendant brings error. Affirmed.
Wolcott & Ward, for appellant.
Dunham & Dunham, for appellees.
The plaintiffs are real-estate brokers. This action is brought to recover a commission claimed to be due from defendant for introducing him to another customer of plaintiffs with whom defendant made an exchange of property. The plaintiff James Friar, on the trial at the circuit, testified that he told the defendant that he had certain farms in his hands which the owner desired to exchange for city property, and that defendant agreed with him that, if he (Friar) would bring him (defendant) a customer with whom he could make a deal, a commission would be paid. The witness also testified that the defendant was at the time informed that the plaintiffs also expected a commission from the other party to the transaction. This testimony was corroborated by other witnesses. It appeared in the case that the plaintiff James Friar had given a somewhat different version of the transaction in the justice court; that he omitted to state that defendant was informed that plaintiffs expected a commission from the other party; and that he testified in justice court that defendant's promise was to pay a commission to any one who made a deal for him. The defendant denied any agreement to pay commissions at all, and denied that he was told that plaintiffs were to receive a commission from the other party to the trade. It appeared that plaintiff subsequently introduced to defendant one Hanrahan, who owned two farms near Grand Rapids, and that an exchange was made by defendant of his property for one of these farms. The witness James Friar testified that his arrangement with Hanrahan was identically the same as with defendant. The defendant's contention apparently was twofold: (1) That he made no agreement to pay commissions, but dealt with plaintiffs as agents of Hanrahan; (2) that, if the jury should find an agreement to pay commissions, the evidence given in justice court by plaintiff disclosed a contract against public policy, and that for this reason plaintiff was not entitled to recover.
A number of exceptions were noted to rulings on admission of testimony, which we have examined, but do not discuss at length, as we are convinced that no damaging error was committed in this regard. The rules of law applicable to this class of cases are briefly stated: (1) An agent to sell may not become the agent of the purchaser, nor may an agent to buy become the agent to sell, unless the principals are duly acquainted with the fact that the agent is acting in such dual capacity. Mechem, Ag. � 943; Scribner v. Collar, 40 Mich. 375; Leathers v Canfield (Mich.) 75 N.W. 612. (2) Rice v. Wood,
113 Mass. 133; Rice v. Davis, 136 Pa. St. 439, 20 A. 513; Everhart v. Searle, 71 Pa. St. 256. (4) But there is another class of cases, in which the broker is not employed to negotiate a sale or purchase, but simply to bring two parties together, and permit them to make their own bargain. In such case he is a mere middleman, and may recover an agreed compensation from either or both, though neither may know that compensation from the other is expected. This is on the ground that such an employment does not place the broker in a position where he can sacrifice the interests of his principal, and because he is not, as agent of the owner, bound to secure the best price obtainable, or, as agent of the buyer, to purchase at the least price at which the property can be bought, as in such case he has nothing to do with fixing the price. Neither party has contracted for his skill, knowledge, or influence and he stands entirely indifferent between them. Mechem, Ag. � 973; Ranney v. Donovan, 78 Mich. 318, 44 N.W. 276; Montross v. Eddy, 94 Mich. 100, 53 N.W. 916; Rupp v. Sampson, 16 Gray, 398; Orton v. Scofield (Wis.) 21 N.W. 261. The pivotal question in this case is whether the plaintiff brought himself within the rule last above stated, and whether the charge of the court fairly presented the question to the jury.
After presenting plaintiffs' theory to the jury, the circuit judge charged as follows: ...
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