Pomeroy v. Wimer

• Decision Date: 11 December 1906
• Docket Number: 20,799
• Citation: Pomeroy v. Wimer, 79 N.E. 446, 167 Ind. 449 (Ind. 1906)
• Parties: Pomeroy et al. v. Wimer
• Court: Indiana Supreme Court

79 N.E. 446

167 Ind. 449

Pomeroy et al. v. Wimer

No. 20,799

Supreme Court of Indiana

December 11, 1906

Original Opinion of June 20, 1906, Reported at: 167 Ind. 440.

OPINION

Hadley, J.

The first point in appellee's petition for rehearing cannot be considered here, because it was not made a point, nor even suggested in his original brief. Elliott, App. Proc., § 557.

The second presents a complaint that we did not, in the former opinion, decide the question he made as to the sufficiency of the appellants' brief. The question alluded to is that appellants' motion for a new trial and the instructions given to the jury could not properly be considered in this appeal, for the reason that they were neither in substance nor in full set forth in appellants' original brief, as required by rule twenty-two of this court.

With respect to the motion for a new trial it may be said that it appears from the record that a joint and separate motion was overruled, and upon which ruling a joint and separate assignment is made in this court, the defenses not being identical. Appellants in their brief, under the heading of "Errors Relied upon for Reversal," state "Separate assignments of error have been made by each appellant assigning one error only, viz., that the court erred in overruling his motion for a new trial. Some of the causes for a new trial are available to each of the appellants and some to one of them only. To avoid confusion we set forth separately the errors relied upon by each appellant. The appellant Esselburn relies upon the following errors for a reversal as to him: (1) The verdict of the jury against him is not sustained by sufficient evidence. (2) The court erred in giving to the jury instruction two," and so on, specifying, in five additional items, error in like terms as to instructions numbered three, eight, twelve fifteen, and eighteen. The follows separate, similar statements as to appellants Weeks and Pomeroy--each of the three selecting from his motion for a new trial, which contained twenty reasons or assignments of error, and setting forth in brief only such of said reasons as he relies on for a reversal, thus leaving the reasons for a new trial not relied upon, unstated and unnoticed in his brief. In the body of points and authorities, and in connection with the points made against them, the instructions complained of are set forth in full.

The rules of this court do not define nor limit the particular matter to be set out under the respective subjects as enumerated in rule twenty-two. What the rules imperatively demand is that the matter called for by rule twenty-two, as a means of information to the judges not having the record, shall be supplied in the briefs. The precise order is not important, provided the parts be assigned in reasonably convenient and logical positions. The omission from the brief of those parts of the motion for a new trial that had been abandoned as constituting error was the proper thing to do. Such dead parts would occupy the time of the judges to no purpose, and are therefore better out of the brief than in it. While so much of the motion for a new trial as presents the error relied on, and the full text of the instructions complained of, are set forth in appellants' brief under subject heads, perhaps not usually adopted, yet the positions selected are convenient, and the effort evinces an honest endeavor to comply with the rule. It will, therefore, be held sufficient.

The further complaint of appellee is that in the principal opinion we made a wrong application of the law to the facts proved in this case. The controlling question is one of agency. The character of the agency must determine the legal rules that govern it. It is firmly settled that an agent with the discretionary power to sell or exchange must exercise that discretion for the sole benefit of his principal. In such cases there is an implied confidence, and reliance on the judgment and skill of the agent, which enters into the essence of the employment, and the latter will not be permitted to deal with himself, or accept like employment from the other party, without the fullest disclosures and consent of his employer or employers. Rochester v. Levering (1886), 104 Ind. 562, 568, 4 N.E. 203; Cannell v. Smith (1891), 142 Pa. 25, 21 A. 793, 12 L. R. A. 295; Empire State Ins. Co. v. American Cent. Ins. Co. (1893), 138 N.Y. 446, 34 N.E. 200.

But where an agent has no discretion or power to sell or exchange, and no authority beyond bringing the buyer and seller together to make their own bargain, cases where the agent merely engages to find a purchaser or trader, on such terms as may be agreed upon by the parties when they meet and where the terms of the employment involve no element of confidence or reliance upon the agent in determining the propriety of making a contract, or in fixing the terms thereof, the great weight of authority holds that such an agent may act for both parties in bringing them together, and be entitled to compensation from both, whether or not the parties severally knew that he was acting for both. Alexander v. Northwestern Christian University (1877), 57 Ind. 466, 479; Cox v. Haun (1891), 127 Ind. 325, 26 N.E. 822; Rupp v. Sampson (1860), 82 Mass. 398, 401, 77 Am. Dec. 416; Jarvis v. Schaefer (1887), 105 N.Y. 289, 11 N.E. 634; Herman v. Martineau (1853), 1 Wis. *151, 60 Am. Dec. 368; Tiffany, Agency, p. 419; 1 Clark & Skyles, Agency, § 414; 2 Clark & Skyles, Agency, § 781; Knauss v. Krueger Brewing Co. (1894), 142 N.Y. 70, 36 N.E. 867. In the last case cited the learned judge illustrated the question under consideration thus: "If A is employed by B to find him a purchaser for his house upon terms and conditions to be determined by B when he meets the purchaser, I...