Raisin v. Clark

• Decision Date: 01 December 1874
• Citation: 41 Md. 158
• Parties: R. W. RAISIN v. ROSA A. CLARK.
• Court: Maryland Court of Appeals

41 Md. 158

R. W. RAISIN v. ROSA A. CLARK.

Court of Appeals of Maryland

December 1, 1874

APPEAL from the Circuit Court for Baltimore County.

The nature of the case is fully stated in the opinion of the Court.

The cause was submitted on briefs to BARTOL, C.J., STEWART BOWIE, BRENT, MILLER and ALVEY, J.

R R. Boarman and William A. Fisher, for the appellant.

Fielder C. Slingluff, for the appellee.

MILLER J., delivered the opinion of the Court.

The appellant is a real estate broker, doing business in Baltimore City, and as such was employed by Mr. Cooper, to sell for him, his farm in Baltimore County. As Cooper's agent, he advertised the farm for sale and the appellee seeing the advertisement called upon him and proposed to exchange a house she owned in the city for the farm, and the exchange was effected. Cooper paid the appellant the usual commission of two and a half per cent. on $6000, the value placed upon the properties so exchanged, and in this action he seeks to recover the like commissions from the appellee. He places his claim on two grounds.

1st. Upon an express agreement or contract between the appellee and himself that she would pay him such commissions in case the exchange was effected.

2nd. Upon an alleged custom or usage among brokers in the city of Baltimore, that in exchanges of real estate they are entitled to a commission of two and a half per cent. from each party on the amount or value of the property exchanged.

The testimony is conflicting as to the making of the alleged agreement, but the question presented for the determination of this Court by the present appeal, is whether such an agreement if made, can be enforced by the agent, by an action founded thereon? That the appellant was Cooper's agent to sell his farm, and that the alleged agreement, if ever made was entered into, while this employment continued, are conceded facts in the case. In this state of facts could he lawfully become the agent of the party by whom the farm was purchased by way of exchange of property? In our opinion it is very clear he could not. It is a general rule that a party cannot in any agency of this kind act as agent or broker for both vendor and vendee in respect to the same transaction, because in such case there is a necessary conflict between his interest and his duty. The vendor in the employment of an agent to sell his property bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit.

It is a confidence necessarily reposed in the agent, that he will act with a sole regard to the interest of the principal as far as he lawfully may. The seller of an estate is presumed to be desirous of selling it at as high a price as can fairly be obtained for it, and the purchaser is equally presumed to desire to purchase it for as low a price as he may. The interests of the two are in conflict. Emptor emit quam minimo potest, venditor vendit quam maximo potest. But if the same party be allowed to act as agent for both it becomes his interest to have this maxim reversed, or at least to sacrifice the interests of one or both of his principals in order to advance his own by receiving double commissions. Hence the law will not permit an agent of the vendor...