Jarvis v. O'Brien
| Decision Date | 23 January 1957 |
| Citation | 305 P.2d 961,147 Cal.App.2d 758 |
| Court | California Court of Appeals Court of Appeals |
| Parties | R. A. JARVIS, Plaintiff and Appellant, v. Margaret J. O'BRIEN, Defendant and Respondent. Civ. 17236. |
David Freidenrich, Palo Alto, Herman D. Gill, San Francisco, for appellant.
No appearance for respondent.
This cause has been submitted for decision pursuant to notice given respondent under Rule 17(b) of the Rules on Appeal. The record consists of the Clerk's and the reporter's transcript, the appellant's opening brief--and nothing more. In such a case this court may assume the burden of reviewing the record for itself. If, in so reviewing the record, we find that there is sufficient competent evidence to support the judgment and that the procedural objections are insubstantial, it becomes our duty to affirm the judgment.
A brief statement of the facts will suffice. Plaintiff's assignor, a broker, entered into a written contract with defendant to sell her restaurant and saloon premises for the fixed price of $100,000. The contract stipulated that defendant would pay plaintiff's assignor a broker's commission, the sum of $10,000, the basis of this action. At the trial it was shown that the broker was an undisclosed partner of the three prospective purchasers. This relation, having been disclosed and admitted by plaintiff's assignor during the trial, the court found that plaintiff's assignor had failed to disclose to the purchasers, with whom he became a partner, that he had a separate agreement with the owner to be paid a commission of $10,000 on the sale which was made for $100,000. The result of this dual capacity was that the purchasers would be required unknowingly to pay to their partner an additional ten thousand dollars on the purchase price which would go to him as broker through the agency of a broker's commission. When the purchasers learned of this they objected and dealt directly with the seller for a lesser price.
Such a transaction has been condemned by all the authorities. The leading case in this state is Glenn v. Rice, 174 Cal. 269, 272, 162 P. 1020, 1021, affirmed in Gordon v. Beck, 196 Cal. 768, 773, 239 P. 309; See McConnell v. Cowan, 44 Cal.2d 805, 285 P.2d 261.
The settled rule of the cases is that unless both parties knew of the double agency at the time of the transaction, the agent cannot recover a commission from either. The rule is thus stated in Glenn v. Rice, 174 Cal....
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