Maloney v. Aschaffenburg
| Decision Date | 20 April 1918 |
| Docket Number | 20864 |
| Court | Louisiana Supreme Court |
| Parties | MALONEY et al. v. ASCHAFFENBURG et al |
Where a broker is employed to sell property and closes an agreement for its sale, he becomes agent of both the seller and the purchaser; and where, as a result of such agreement, the purchaser deposits with him 10 per cent. of the amount of the purchase price, the seller may not sue the broker to recover such deposit, without properly impleading the purchaser and making him a party to such suit.
O'Niell, J., dissenting.
O'NIELL J., dissents for the reasons stated in the original opinions and for the further reasons now handed down.O'NIELL, J., dissents.
The pleadings and facts in this case are fully stated in our original opinion, and in this rehearing we are called upon to review the correctness of the legal conclusions heretofore reached by us. We held originally that plaintiffs' petition did not set forth a cause of action against Aschaffenburg for having failed either to allege that they had put Aschaffenburg in default, or to allege facts which would have dispensed them with the necessity of such putting in default. That conclusion, we are still of the opinion, was manifestly correct. But we further decided that Aschaffenburg was not a necessary party to this suit, and proceeded to render judgment upon that theory. That was the announcement of another legal conclusion in which we now believe that we committed error.
Plaintiffs in their petition, under paragraph 7, expressly allege that Willard & Eiseman refuse to turn over to them the deposit of $ 4,200, notwithstanding amicable demand by petitioners, and in the prayer of their petition ask for service on Aschaffenburg as well as upon Willard & Eiseman.
The alleged reasons for which Willard & Eiseman refused to comply with plaintiffs' demand was the fear of being also held responsible by Aschaffenburg, and thus have to pay a second time, and out of their own pocket. So that it is evident that both plaintiffs and defendants Willard & Eiseman considered that Aschaffenburg should have his day in court that he might urge any claim on his part to the deposit, and the object of plaintiffs' suit was then not only to recover the $ 4,200, but also to obtain contradictorily with Aschaffenburg, in order that the latter might thereafter be bound by the judgment, as a decree which would recognize their ownership of the fund and at the same time protect Willard & Eiseman.
Whether the sum of money deposited by Aschaffenburg with Willard & Eiseman be considered as part of the purchase price in an executory contract of sale, or as earnest money, plaintiffs, in order to recover and to be adjudged owners thereof, must of necessity either compel Aschaffenburg to perform the contract or have the deposit declared forfeited, and, in either event, Aschaffenburg is a necessary party to such a judgment.
Again, Willard & Eiseman have acted in this transaction as real estate brokers, and therefore as agents of both parties; for, according to article 3016, Civil Code, a broker is considered the mandatary of both parties. We held in the case of Woods, Slayback & Co. v. Rocchi, 32 La.Ann. 210, that a broker is the agent of the original employer and becomes agent of the other party, when the bargain is definitely settled. Willard & Eiseman were therefore the agents of plaintiffs, the original employers, when they undertook to sell the property and later also became the agents of Aschaffenburg when the latter agreed to purchase the property. It was further held by this court is Louisiana Board of Trustees, etc., v. Dupuy, 31 La.Ann. 305, that where a person is the common agent of others, and is called upon to account, there should be but one proceeding, to which all those in interest should be made parties, and their rights determined in concurso. It follows that in a suit against the agents, Willard & Eiseman, for an accounting, by plaintiffs one of the principals, Asschaffenburg, the other principal, is a necessary party.
The general rule is that any...
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