G.D. Hook & Co. v. Miller

• Decision Date: 21 March 1921
• Docket Number: 21429
• Citation: 125 Miss. 1,87 So. 451
• Parties: G. D. HOOK & CO. v. MILLER
• Court: Mississippi Supreme Court

87 So. 451

125 Miss. 1

G. D. HOOK & CO. v. MILLER

No. 21429

Supreme Court of Mississippi

March 21, 1921

BROKERS. Commission not recoverable from third person on exchange of land without contract, unless relation disclosed. Where a real estate agent advertised certain property for sale, from which advertisement a correspondence ensued between the agent and a third party, finally resulting in an exchange of lands between the agent's client or customer and the third party, the agent cannot recover a commission of the third party with-out an express contract, unless he discloses to the third party his relation to the other party.

HON THOS. B. CARROLL, Judge.

APPEAL from circuit court of Clay county, HON. THOS. B. CARROLL Judge.

Action by G. D. Hook & Co. against William Miller. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Kimbrough & Valentine and W. N. Ethridge, for appellant.

Appellant is entitled by law of the land to a reasonable commission the amount depending upon the amount allowed by customs locally prevailing among this particular class of brokers or dealers or agencies. 19 Cyc., p. 284 (Note); 9 Corpus Juris, p. 590 (Note); 27 L. R. A. (N. S.), p. 1089; 43 L. R. A. (N. S.) p. 91; 5 So. 157 (Ala.).

Appellant takes it to be the law of the land that if a broker, dealer, or agency, uses no discretion, but merely brings together the parties to an exchange or the purchase and sale of property and his employment, then terminates and the parties themselves settle the terms of the transaction, he acts as a mere middle man and may accordingly recover a commission from each party if each party has agreed to pay him and it is immaterial in such case that either party was aware that said broker, dealer or agency was employed by the other. 9 Corpus Juris, 576; note 3; 24 L. R. A. (N. S. ) 659; 31 L. R. A. (N. S.) 1222.

Appellant's services were the procuring cause and the commissions or compensation is due. 9 Corpus Juris, p. 611; 62 So. 254, (Ala.); 33 So. 112; 34 L. R. A. (N. S.) 1050; 139 A. S. R., p. 1050; 139 A. S. R., p. 220; 43 So. 993; 200 F. 897. "To bring a purchaser," to find a purchaser, etc., have no real difference in meaning if the broker, dealer or agency is the efficient cause of the parties making a trade. 9 Corpus Juris, p. 611.

The question as to what constitutes the procuring cause is answered in 9 Corpus Juris, p. 611; 40 So. 14 (Miss.).

Appellee and H. Richard Smith were brought together as a result of appellant's efforts and appellee disposed of his city property in Missouri as a result. Appellant is, therefore, entitled to commission even though not present during the negotiations following the introduction nor taking any part therein. 9 Corpus Juris, p. 615, Note 25; 40 So. 14; 9 Corpus Juris, p. 616, et seq.

In the light of all these things, appellant appeals and contends that the four divisions in the assignment of error have been sustained and that the judgment of the trial court should be reversed.

Gates T. Ivey, for appellee.

The question of fact was determined by the court, who rendered an opinion, appearing at page 52 of the record. We invite attention to this opinion which appears to our mind as full of common sense. Relying upon this opinion we cite no authority, believing that court decisions can offer no aid in the solution on the question of fact so well determined by the court below.

Concluding with a brief review of the question of double agency, we may remark that while it is true in this case Richard Smith, the owner of the West Point property, paid no commission to appellants yet their relation was the same as that of double agency for the reason that they claimed to have undertaken the task and trust as brokers to find the appellee somewhere an exchange for his property. In doing so, they had contract with Richard Smith for a division of any commission which might be derived from the owners of property in Mississippi, listed either with Richard Smith or with appellants, in the exchange of which Smith should offer any assistance. If appellants had been employed as brokers for the appellee to find him property in exchange, their relation was one of confidence and their duty was one of faithfully procuring an advantageous proposition; their duty was to find for the appellee a satisfactory exchange and guard his interest in every respect. They claim to have sent appellee to Mississippi to review properties which they had listed, and confess that all of this property in the vicinity of Aberdeen and West Point, was property under which Richard Smith had control along with themselves as real estate agents for commissions. It happened that Smith sold his own property and under the arrangement no commission was paid, but the transaction with Miller, had the claim of appellants been true that they were acting as his brokers, was nevertheless stained with a double dealing, for Miller had no knowledge whatever of the fact that he was in the hands of Richard Smith, an associate of appellants, paid by the owners to do all he could to work off their property.

A certain agreement between brokers representing different principals to divide commission in case the transaction is completed is void as against public policy, and deprives them of the right of compensation, 26 Am. St. Rep. 303, 54 N.E. 499, 19 Cyc. 228, article 4.

In the case of Bell v. McConnell, reported in 14 Am. Rep., at page 528, the court there holds that a broker acting for both parties in the sale of land cannot recover from either, even though an expressed promise to pay a commission, unless their double agency was with the consent of both parties.

The truth is, it was a part of the consideration moving to appellants in the contract existing between Smith and them, that Smith would act for them, but that in the case of the sale of this particular piece of land, there would be no commission due appellants. Appellants were, therefore, in this way paid. Under the terms of their contract they found it necessary to do all in their power to exchange Smith's lands, whether they were actually paid a pecuniary sum or not.

We feel confident that the judgment of the court below should be affirmed.

OPINION

ETHRIDGE, J.

The appellant was plaintiff below and filed suit for commissions against Miller for an exchange of certain property between William Miller and H. Richard Smith. The suit is predicated upon the following letter written by the appellant to the appellee:

"We have seven hundred acres nine miles from West Point Mississippi, and four miles from station to Illinois Central Railroad. Overflowing well, fifty acres in alfalfa soil, two hundred fifty acres in black valley land--no overflow; three hundred acres fine merchantable timber; balance open cotton land. A very fine stock proposition.

"Six hundred forty acres same kind of land six miles from Aberdeen, Mississippi; improved; one mile from station on Illinois Central Railroad.

"Also three hundred twenty acres one-half mile from West Point; improved; but neglected; two hundred forty acres open. A fine stock proposition.

"Also six hundred forty acres two miles from West Point, on rock road, several cabins, all under fence, two hundred acres of timber, balance rich lime soil, about three hundred acres alfalfa soil.

"We can trade either of the above for your Dexter property. If you can come down, or let me know what time you can go to West Point, will give you a letter to a party there who...