Macfee v. Horan

• Decision Date: 14 January 1889
• Citation: 41 N.W. 239,40 Minn. 30
• Parties: MACFEE ET AL. v HORAN.
• Court: Minnesota Supreme Court

40 Minn. 30

41 N.W. 239

MACFEE ET AL.vHORAN.

Supreme Court of Minnesota.

Jan. 14, 1889.

(Syllabus by the Court.)

In an action by an agent to sell real estate, for his commission on a sale, a denial, in the answer, of the agreement authorizing him to sell, will not admit proof that while making the sale he was also acting as agent for the buyer in making the purchase.

Appeal from district court, Hennepin county; REA, Judge.

Action for commissions on sale of real estate by R. N. MacFee et al. against Margaret Horan. Judgment for defendant, and plaintiffs appeal.

Jackson, Atwater & Hill, for appellants.

C. D. & T. D. O'Brien, for respondent.

GILFILLAN, C. J.

It was error in the court below to admit against plaintiffs' objection evidence tending to prove that, while plaintiffs were agents for the defendant to sell the land, and were making the sale of it to Peck, one of them-MacFee-was agent also for his (MacFee's) brother, and was acting for him in forming a “pool,” of which the brother was to be a member, for the purpose of taking from Peck, at a small advance on the price to be paid by him, a transfer of the land. Without considering whether the facts of which evidence was thus admitted would bring the case within the rule that denies the right of compensation for making a sale of property to an agent authorized to sell it, where he, without the consent of his principal,-the seller,-has acted in the inconsistent relation of agent for the buyer in purchasing at the sale, it is enough for the purposes of this case that the facts of which evidence was thus admitted were not pleaded. Such facts could not be proved under a denial of the agreement sued on, nor under a denial of plaintiffs' performance of it. That agreement was valid. There was nothing in it immoral or contrary to public policy. The case is therefore not analogous to that in Oscanyan v. Arms Co., 103 U. S. 267, (even if the rule as to pleading laid down in that case could be followed here,) for in that case the contract sued on was a corrupt one, forbidden by morality and public policy. Here what is relied on to defeat a recovery is alleged conduct or acts of plaintiffs independent of the contract, and not affecting its validity. A denial of the contract authorizing plaintiffs to sell would in no way apprize them that defendant intended to rely as a defense on proof of such conduct or acts. Order reversed.