Hobart v. Sherburne
| Decision Date | 09 November 1896 |
| Docket Number | 9798--(6) |
| Citation | 68 N.W. 841,66 Minn. 171 |
| Parties | MARCUS P. HOBART v. CHARLES K. SHERBURNE |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Belden, J., denying a motion for a new trial, after a verdict in favor of plaintiff for $ 1,700. Reversed.
Order reversed, and a new trial granted.
Kitchel Cohen & Shaw, for appellant.
L. R Larson, for respondent.
This was an action to recover the reasonable value of the plaintiff's services as a real-estate agent in procuring for the defendant a lessee of certain premises in the city of Minneapolis, owned by defendant. The defense was (a) a general denial; (b) that the services were performed for the lessee as his agent, and not for or as the agent of the defendant; (c) that the services were rendered pursuant to an agreement between the plaintiff and the lessee, Stafford whereby plaintiff was to procure from the defendant the lowest price he could for the lease, and divide with the lessee whatever commission he could obtain from the defendant. The plaintiff had a verdict, and the defendant appeals from an order denying his motion for a new trial.
The defendant's assignments of error may be considered under two general heads: First. Did the trial court err in its instructions to the jury? Second. Did the court err in refusing the defendant's request to instruct the jury to return a verdict for him, and in refusing his motion for a new trial on the ground that the verdict is not justified by the evidence?
1. The court instructed the jury in reference to the third defense, in substance, as follows: If at the outstart there was an agreement or understanding between the plaintiff and Stafford that the former should in any way, or to any extent, act for the latter, or for the parties he represented, and that the commission should be divided between them, the plaintiff cannot recover in this case.
"But if, as I have already indicated to you, at the outstart, he brought the fact to Stafford's attention that this property was for lease, -- that is, that he first directed Stafford's attention to that fact, -- and from that time on thereafter acted exclusively for the defendant * * * and if at some subsequent time he discovered that it might be for the defendant's interest to make this concession of a part of his commission, and he did it, and did it honestly and with an honest intent for the purpose of promoting the interest of the defendant, then that did not defeat his right to recover."
The defendant excepted to so much of the foregoing as we have quoted literally. As an abstract legal proposition, the instruction was correct. But in practice all agreements between a real-estate agent or broker and the proposed purchaser, touching the subject-matter of his employment, which are not disclosed to his principal, should be scrutinized closely, and, if not found compatible with entire integrity and good faith toward the principal, they will defeat the agent's claim for commission from his principal. Webb v. Paxton, 36 Minn. 532, 32 N.W. 749.
2. The defendant further insists that the evidence does not sustain the verdict, for the reason that it does not show that the plaintiff was the procuring cause of the making of the lease, that it does show that the damages are excessive, and that the plaintiff was the employe of Stafford, and that their relations were such that the plaintiff could not perform faithful services for the defendant.
The evidence on the part of the plaintiff was sufficient to sustain the finding of the jury that he was the procuring cause of the making of the lease. The question as to the damages becomes immaterial in view of the disposition which we make of the case. Under the instructions of the trial court, the jury, in returning a verdict for the plaintiff, necessarily found that his arrangement with and relations to Stafford in the premises were entered into with an honest intent, and for the purpose of promoting the interest of defendant. The verdict on this point is so manifestly and palpably without the support of any sufficient evidence that we are constrained to set it aside, notwithstanding our extreme reluctance to interfere with a verdict which has been approved by the trial court.
This conclusion is based upon the plaintiff's own testimony. He practically admitted that he had an arrangement with the agent of the lessee to divide his commission with him, and that he sustained equivocal relations to him as to the subject-matter of his alleged employment by the defendant. The burden was, therefore, on the plaintiff to establish his entire good faith in the premises, and that such arrangement and relations were compatible with faithful services for the defendant. He failed to do this. The defendant called as a witness Lac Stafford, the agent of the lessee, who gave testimony tending to show that he employed the plaintiff to look after his interests in the deal, and that they agreed to divide the commission. This the plaintiff positively denied, but his testimony as to his dealings with Stafford, stated in its logical order, and omitting repetitions, was substantially this:
...
To continue reading
Request your trial