Jensen v. Bowen
| Decision Date | 09 July 1917 |
| Docket Number | 1915 |
| Parties | H. C. JENSEN v. M. K. BOWEN |
| Court | North Dakota Supreme Court |
Rehearing denied July 28, 1917.
Action for purchase price of grain. Counterclaim for commissions as real estate agent.
Appeal from the District Court of Golden Valley County, W. C Crawford, J.
Judgment for defendant. Plaintiff appeals.
Reversed.
Judgment of the District Court reversed and a new trial ordered.
Thomas H. Pugh and Otto Thress, for appellant.
The rule is that a broker cannot receive commissions from both parties to a land transaction unless they both agree to same. Langford v. Issenhuth, 28 S.D. 451, 134 N.W. 889.
A middleman is defined to be a person who merely brings the parties together and takes no part in making the bargain or closing the same. 27 Cyc. 487; Geddes v. Van Rhee, 126 Minn. 517, 148 N.W. 549.
An agent who represents the adverse party without his principal's consent not only loses his right to compensation from his principal, but he cannot recover pay from the other party on either an express or implied promise to pay. Anderson v. First Nat. Bank, 5 N.D. 80, 64 N.W. 114; Clendenning v. Hawk, 10 N.D. 90, 86 N.W 114; Van Dusen v. Bigelow, 13 N.D. 277, 67 L.R.A. 288, 100 N.W. 723.
An agent cannot be at the same time a party and agent of the opposite party, unless the latter knows and assents to it. Dull v. Royal Ins. Co. 159 Mich. 671, 124 N.W. 533.
His interest and his duty must not conflict. Hogle v. Meyering, 161 Mich. 472, 126 N.W. 1063; State v. State Journal Co. 77 Neb. 752, 9 L.R.A.(N.S.) 179, 110 N.W. 763, 111 N.W. 118; Larson v. Thoma, 143 Iowa 338, 121 N.W. 1059; Webb v. Paxton, 36 Minn. 532, 32 N.W. 749.
He must use his best judgment and skill to promote the interest of his employer. He must not act for two persons whose interests are adverse. Hunter Realty Co. v. Spencer (Horner v. Spencer), 21 Okla. 155, 95 P. 757, 17 L.R.A.(N.S.) 622, also extensive note to above case; Rinebarger v. Weesner, 91 Kan. 303, 137 P. 969.
He cannot recover compensation from either without showing consent of both to his dual employment. Crawford v. Surety Invest. Co. 91 Kan. 748, 139 P. 481; Jeffries v. Robbins, 66 Kan. 427, 71 P. 852; Crawford v. Surety Invest. Co. 91 Kan. 748, 139 P. 481; Lynch v. Fallon, 11 R. I. 311, 23 Am. Rep. 458; Raisin v. Clark, 41 Md. 158, 20 Am. Rep. 66; Hoffhines v. Thorson, 92 Kan. 605, 141 P. 253; Young v. Hughes, 32 N.J.Eq. 372; Bookwalter v. Lansing, 23 Neb. 291, 36 N.W. 549; Hall v. Gambrill, 34 C. C. A. 190, 63 U. S. App. 740, 92 F. 32; McKinley v. Williams, 20 C. C. A. 312, 36 U. S. App. 749, 74 F. 94; Langford v. Issenhuth, 28 S.D. 451, 134 N.W. 889; Story, Agency, § 31; 19 Cyc. 207, 226; 31 Cyc. 1447; 1 Am. & Eng. Enc. Law, 2d ed. 1073; 4 Am. & Eng. Enc. Law, 2d ed. 984; 2 C. J. 763, and cases cited.
Motions for new trials are addressed to the sound discretion of the trial court. Aylmer v. Davis, 30 N.D. 514, 133 N.W. 419; First International Bank v. Davidson, 36 N.D. 1, 161 N.W. 281.
C. L. Waldron, T. F. Murtha, and J. W. Sturgeon, for respondent.
Dual agency, fraud, and all such matters must be specially pleaded and proved, if such defenses are claimed. No such issues were before the lower court, and they cannot be presented here for the first time. 1 Sutherland, Pl. § 516, note 207; Jain v. Griffin, 3 Colo.App. 90, 32 P. 80.
No motion was made for a directed verdict, and therefore a motion for judgment notwithstanding the verdict could not be entertained. Code, § 7643; Buchanan v. Occident Elevator Co. 33 N.D. 346, 157 N.W. 122.
Again, after such a motion is made and overruled, and the movant introduces evidence, he forfeits his rights in failing to renew his motion. Landis Mach. Co. v. Konantz Saddlery Co. 17 N.D. 310, 116 N.W. 333; West v. Northern P. R. Co. 13 N.D. 231, 100 N.W. 254; Johns v. Ruff, 12 N.D. 79, 95 N.W. 440.
A motion based on the insufficiency of the evidence must point out wherein the evidence really is insufficient, or for what reasons it is so claimed. Code, § 7656; Updegraff v. Tucker, 24 N.D. 171, 139 N.W. 366; Gagnier v. Fargo, 12 N.D. 219, 96 N.W. 841; Flora v. Mathwig, 19 N.D. 4, 121 N.W. 63; Pickert v. Rugg, 1 N.D. 230, 46 N.W. 446; Anderson v. Medbery, 16 S.D. 329, 92 N.W. 1087; Buchanan v. Occident Elevator Co. 33 N.D. 347, 157 N.W. 122; Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N.D. 366, 155 N.W. 861.
Where there is a conflict in the evidence, a motion for directed verdict is properly overruled. Pewonka v. Stewart, 13 N.D. 117, 99 N.W. 1080, 16 Am. Neg. Rep. 540; Severtson v. Northern P. R. Co. 32 N.D. 200, 155 N.W. 11; Dring v. St. Lawrence Twp. 23 S.D. 624, 122 N.W. 664; Edwards v. Chicago, M. & St. P. R. Co. 21 S.D. 504, 110 N.W. 832; Higgs v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N.D. 446, 15 L.R.A.(N.S) 1162, 114 N.W. 722, 15 Ann. Cas. 97; Houghton Implement Co. v. Vavrowski, 19 N.D. 594, 125 N.W. 1024; Grasinger v. Lucas, 24 S.D. 42, 123 N.W. 77.
In no event would plaintiff be entitled on this appeal to an order for judgment. AEtna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436.
Defendant pleaded and proved that he was a mere middleman who simply brought plaintiff and the landowner together and allowed them to make their own deal. Upon such showing he is entitled to recover. Leathers v. Canfield, 45 L.R.A. 51, annotation; 19 Cyc. 234 (i); Clark v. Allen, 125 Cal. 276, 57 P. 985; Abel v. Disbrow, 15 A.D. 536, 44 N.Y.S. 573; Geery v. Pollock, 16 A.D. 321, 44 N.Y.S. 673; Litts v. Morse, 145 Wis. 472, 130 N.W. 460; King v. Reed, 24 Cal.App. 229, 141 P. 41; McLure v. Luke, 24 L.R.A.(N.S.) 659, 84 C. C. A. 1, 154 F. 647; Redmond Bros. v. Henke, 137 Iowa 228, 114 N.W. 885; Wasser v. Western Land Securities Co. 97 Minn. 460, 107 N.W. 160; Darrow Invest. Co. v. Breyman, 32 Wash. 234, 73 P. 363; Langford v. Issenhuth, 28 S.D. 451, 134 N.W. 889.
Where the broker acts merely as a middleman it is wholly immaterial that either party is ignorant of the broker's employment by the other side. Montross v. Eddy, 94 Mich. 100, 34 Am. St. Rep. 323, 53 N.W. 916; Ranney v. Donovan, 78 Mich. 318, 44 N.W. 276; Leathers v. Canfield, 45 L.R.A. 51, annotation; 19 Cyc. 234; Green v. Southern States Lumber Co. 141 Ala. 680, 37 So. 670; Law v. Ware, 238 Ill. 360, 87 N.E. 308; Grasinger v. Lucas, 24 S.D. 42, 123 N.W. 77; Kilpinski v. Bishop, 143 Wis. 390, 127 N.W. 974; Tasse v. Kindt, 145 Wis. 115, 31 L.R.A.(N.S.) 1222, 128 N.W. 972; Friar v. Smith, 120 Mich. 411, 46 L.R.A. 633, 79 N.W. 633.
Defendant did not contract with either party for his skill, knowledge, and influence, and he stands entirely indifferent between them. Mechem, Agency, § 973; Ranney v. Donovan, 78 Mich. 318, 44 N.W. 276; Montross v. Eddy, 94 Mich. 100, 34 Am. St. Rep. 323, 53 N.W. 916; Rupp v. Sampson, 16 Gray, 398, 77 Am. Dec. 416; Orton v. Scofield, 61 Wis. 382, 21 N.W. 261.
There is no newly discovered, legal evidence. There is no showing of any such thing. There is only evidence of certain conversations which are only and really the legitimate aftermath of a lawsuit. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419; 29 Cyc. 881 (1); Wilson v. Seaman, 15 S.D. 103, 87 N.W. 577; Longley v. Daly, 1 S.D. 257, 46 N.W. 247; Fisk v. Fehrs, 32 N.D. 119, 155 N.W. 676; 29 Cyc. 911; State v. Raice, 24 S.D. 111, 123 N.W. 708; Ernster v. Christianson, 24 S.D. 103, 123 N.W. 711; State v. Brandner, 21 N.D. 310, 130 N.W. 941; 29 Cyc. 918; Libby v. Barry, 15 N.D. 286, 107 N.W. 972; State v. Albertson, 20 N.D. 512, 128 N.W. 1122.
Statement of facts by BRUCE, Ch. J.
This is an action to recover $ 800 alleged to be the purchase price of grain sold to the defendant, M. K. Bowen. The defendant admits the purchase, but claims that the amount agreed to be paid was only $ 600. He then alleges, as a counterclaim, that on or about the 15th day of July plaintiff and defendant entered into an agreement whereby the plaintiff agreed to pay to the defendant the sum of $ 800 on condition that the defendant should bring the plaintiff and one B. S. Davis, who was the owner of certain lands, together, so that the plaintiff and the defendant might make a deal for the sale by the said Davis, and the purchase by the said plaintiff of said tract of land upon terms acceptable to the said Davis and the plaintiff; that the defendant did bring said Davis and said plaintiff together, and that the said parties then and there on or about the 5th day of September, A. D., 1912, made a deal whereby the said Davis sold and transferred said real estate to the said plaintiff; that the defendant has given plaintiff credit in the sum of $ 600 for the purchase of the grain upon said brokerage of $ 800, and that there is now due to him the sum of $ 200, being the difference between the two amounts.
A verdict was rendered for the defendant for the sum of $ 1, and from the judgment entered thereon the plaintiff appeals.
BRUCE, Ch. J. (after stating the facts as above). It is urged that the defendant, Bowen, was acting for Davis in the sale of the land; that Davis had promised him a commission for selling the same, and that since the proof shows that the plaintiff, Jensen, had also agreed to pay him a commission, and this fact was not known to Davis, no recovery can be had.
There can be no doubt of the correctness of this contention provided that the proof does not also show that the defendant was merely a broker or middleman. The rule is one of public policy. ...
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