Lemcke v. A. L. Funk & Co.

• Decision Date: 09 March 1914
• Court: Washington Supreme Court
• Parties: LEMCKE v. A. L. FUNK & CO. et al.

139 P. 234

78 Wash. 460

LEMCKE v. A. L. FUNK & CO. et al.

Supreme Court of Washington

March 9, 1914

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by George Lemcke, doing business as Guaranty Investment Company, against A. L. Funk & Company and another. From a judgment for plaintiff against the defendant named, it appeals. Affirmed.

Brightman Halverstadt & Tennant, of Seattle, for appellant.

Elias A. Wright, of Seattle, for respondent.

ELLIS J.

The plaintiff, George Lemcke, doing business as Guaranty Investment Company, brought this action to recover $493.50 being one-half of commissions received by defendants for negotiating an exchange of certain properties. The jury returned a verdict in his favor as against both defendants. The court granted a motion for judgment notwithstanding the verdict as to the defendant Benson, but entered judgment on the verdict as against the defendant A. L. Funk & Co. That defendant appeals.

There was evidence tending to establish facts as follows: In June, 1911, one Mrs. McOmber was a saleswoman connected with the respondent's real estate office under an arrangement whereby properties secured by her for sale were listed as a part of the respondent's business, and she was to receive a portion of the commissions paid to the respondent on all sales made wholly or partially through her efforts. The record clearly discloses that both she and the respondent regarded the relation that of employer and employé. The defendant Benson and one Obington, and apparently other persons, had similar arrangements with the appellant company. That company provided them with desk room and stenographers and furished the necessary advertising, which was put out in the name of the company. All properties secured for sale by such persons were listed with the company as a part of its business, and all contracts for the payment of commissions were taken in the name of the company. Such persons received no salaries, eo nomine, but were paid a portion, usually one-half, of the commissions received on such sales as were made through their individual efforts. It fairly appears that this rule applied whether the particular property sold had been listed through the efforts of the person making the sale, or through the efforts of another, or directly by the owner, with the company. This, however, was subject to the condition that, where a listing was secured through one person and a sale of the property so listed was made by another, the person securing the listing received one-fifth of the commission. Benson and the others similarly employed were permitted to and did use the business cards of A. L. Funk & Co. in soliciting business. The transaction in question arose as follows: In June, 1911, a ranch belonging to a Dr. Newlands was listed in the respondent's office through Mrs. McOmber, and was advertised for sale by the respondent. Shortly afterwards, certain stocks belonging to one North were similarly listed in the office of the appellant through Obington. Mrs. McOmber and Mrs. Cook, office manager for the respondent, both testified that Benson came to the respondent's office, being attracted by the advertisement, and inquired about the Newlands ranch. It was then agreed that, if he made a sale of the ranch, he would divide any commissions received with Mrs. McOmber. It appears that shortly afterwards he again inquired of Mrs. McOmber whether the property would be exchanged for the North stocks. She told him that she did not know, but would see Dr. Newlands about it. She testified that at one of these times she gave to Benson a description of the property, and that they finally agreed to pool the commissions which might be received from Newlands and North, in case of an exchange, and divide the aggregate between them.

Benson flatly denied this, but on the conflicting evidence the jury was justified in finding, and we must assume it did find, that such an agreement was made. Benson afterwards went to Newlands and secured from him a contract authorizing the appellant to sell the land, and agreeing to pay the appellant a commission therefor. Through Benson and Obington, a trade was consummated. The commissions were paid by North and Newlands directly to A. L. Funk & Co. They amounted to $987. This was divided between Benson, Obington, and A. L. Funk & Co.; each taking a third. There was evidence also from which the jury might have found that A. L. Funk, president of A. L. Funk & Co., had a conversation with Mrs. McOmber, prior to the closing of this deal, in which he was informed of her interest in it. After the exchange was made, Benson refused to talk with Mrs. McOmber about the commissions. She went to see A. L. Funk regarding the matter, and he then told her that he knew nothing about it, but would see Benson. He testified that Benson informed him that Mrs. McOmber had nothing to do with the transaction, and he, taking Benson's word for it, divided the commission as above indicated. Afterwards he stated that this division had been made before Mrs. McOmber's second visit to him.

There are but three questions worthy of notice presented by this appeal: (1) Was there sufficient evidence to take the case to the jury upon the question of Benson's agency for the appellant? (2) Did the court commit reversible error in admitting evidence of certain statements of Benson that he was acting as agent for appellant in this transaction? (3) Was the granting of the motion for judgment non obstante veredicto as to Benson and not as to the appellant error prejudicial to the appellant?

1. The appellant contends that the only substantial evidence of the agency of Benson was the statement of Mrs. McOmber and Mrs. Cook to the effect that, when he came to inquire about the Newlands ranch, he stated that he was the agent and manager of the farm lands department of A. L. Funk & Co. We think, however, that, independently of this testimony, there was sufficient evidence to take the case to the jury upon the question of Benson's agency. It is admitted that he was permitted to use the business cards of A. L. Funk & Co., and Mrs. McOmber testified that, as she remembered it, either then, or at some other time, he presented a card of A. L. Funk & Co. with his own name thereon as manager of the farm lands of that company, and Mr. Funk admitted that the men operating from appellant's office, under the arrangement above outlined, were permitted to use the cards of the company. Moreover, as we have seen, all lands listed through the efforts of Benson and others similarly employed were entered on the books of the company as a part of its own business. All contracts for commissions were made with the company, and the commissions on sales of such lands were paid to the company. That course was clearly pursued in this instance. All of this was competent evidence tending to prove Benson's employment by, and authority to bind, the appellant. Its weight was for the jury.

If he was, in fact, an agent, or was permitted by appellant to hold himself out as such, then it is clear that it was within the apparent scope of his authority to agree for a division of commissions, according to the well-known custom of real estate men, with other agents through whose assistance specific sales might be negotiated. Tiffany, Agency, pp. 203, 204; 1 Am. & Eng. Ency. Law (2d Ed.) pp. 997, 998; Driver v. Galland, 59 Wash. 201, 109 P. 593; O'Daniel v. Streeby, 137 P. 1025.

It is clear from the evidence that Benson first came in touch with the Newlands property through the respondent's advertisement and through direct negotiation with Mrs McOmber, respondent's representative. There was sufficient evidence from which the jury might have found, and doubtless did find, that Benson secured the listing with the appellant of the Newlands ranch through information received from Mrs. McOmber, and under an agreement to divide any commissions received with her. The appellant, having accepted the...