Leno v. Stewart

• Decision Date: 11 October 1915
• Citation: 95 A. 539
• Parties: LENO v. STEWART.
• Court: Vermont Supreme Court

95 A. 539

LENO

v. STEWART.

Supreme Court of Vermont. Washington.

Oct. 11, 1915.

Exceptions from Washington County Court; Willard W. Miles, Judge.

Action by Joseph Stewart against Joseph Leno. Prom a judgment for plaintiff, defendant excepted. Reversed.

The plaintiff and the defendant are real estate brokers, and have been for quite a number of years. Five or six years ago the plaintiff was requested by Walter F. Stoddard to find a customer who would purchase his farm; and it was understood between them that plaintiff was to receive a commission on the sale or exchange of said farm. The plaintiff undertook to find such a customer, and on several occasions sent or took persons to said farm with a view of purchasing it, but no sale was made to any of them.

In the fall of 1913 the defendant, as agent of Timothy Holland, had the latter's farm for sale, and was authorized to sell it, or to exchange it for a smaller farm. Stoddard's farm was smaller than Holland's farm. On or about the 9th day of November, 1913, the defendant applied to the plaintiff to furnish him a customer for the purchase of the Holland farm, promising the plaintiff to pay him one-half the commission which the defendant should receive for the sale or exchange of it, providing the plaintiff furnished him a customer who should purchase said farm or exchange one for it. At a later date, and before the 22d day of that month, the plaintiff furnished Stoddard as a customer for the purchase and exchange of his said farm for the Holland farm; and before the 26th day of the same month the trade between Stoddard and Holland, in exchange of farms, was fully consummated. On the date last named, defendant paid to plaintiff $50 towards the latter's share of the commission that the former had received or was to receive from Holland "for the sale and exchange" of his farm for the Stoddard farm. Plaintiff received from Stoddard on November 22, 1913, personal property valued at $100, as his commission "for the sale and exchange" of the latter's farm. Defendant received from Holland "for the sale and transfer" of his farm a commission of $400.

Stoddard knew nothing whatever about any arrangement whereby the plaintiff was to receive any commission or reward from either Holland or the defendant, and consequently never consented thereto. On the day when defendant paid the plaintiff the $50 as before mentioned, the latter represented to the former that he had received no commission from Stoddard; and it is not found that the defendant ever understood that plaintiff was to receive a commission from Stoddard, or consented to his so doing. And on the occasion, when the exchange was agreed upon, the plaintiff called defendant out of the room where Stoddard could not hear them, and told defendant that he would "bust" up the trade unless Holland paid him something.

Plaintiff requested the court to find that in the sale and exchange of the Holland farm for the Stoddard farm, in the transaction involved in this case, "the plaintiff said nothing at all by which he encouraged the trade or advised, or anything of the kind in connection with the deal"; that he merely got Stoddard and the defendant together, and they made the trade themselves. The court said it was unable to find in accordance with this request.

This suit is brought by plaintiff to recover one-half of the commission received by defendant from Holland, less' the $50 already received as above stated. The claim of the defendant is that, upon the facts found, it is against public policy for plaintiff to be allowed to recover. The judgment below was for the plaintiff to recover the amount of his claim, to which defendant excepted.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Theriault & Hunt, of Montpelier, for plaintiff. H. C. Shurtleff, of Montpelier, for defendant.

WATSON, J. Whatever the result might be if it appeared that the plaintiff were employed for the mere purpose of bringing a possible buyer and seller together, leaving everything else to the action of the principals, as was the case in Knauss v. Gottfried Krueger Brewing Co., 142 N. Y. 70, 36 N. E. 867, the record shows that the...