Scott v. Kelso
| Decision Date | 04 June 1910 |
| Citation | 130 S.W. 610 |
| Parties | SCOTT v. KELSO et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jones County; Cullen C. Higgins, Judge.
Action by John W. Scott against W. C. Kelso and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Brooks & Brooks, for appellant. Thomas & Chapman, for appellees.
Appellant instituted this suit against the appellees to recover commissions for services alleged to have been rendered by him in the sale of certain land situated in Jones county. Appellees owned about 3,300 acres, and the sale was finally consummated by them with one George W. Birchfield; the sale in a large part consisting of an exchange of lands. Birchfield in the sale was represented by one Patterson as an agent. The jury, in obedience to a peremptory instruction by the court, returned a verdict for appellees, and judgment was entered accordingly.
It was shown that one of the appellees listed their land with appellant for sale and promised the payment of a commission; but we nevertheless conclude that the judgment must be affirmed, because of the undisputed proof that prior to the sale of the lands mentioned appellant and the said Patterson, the agent of Birchfield, without the knowledge or consent of either of the appellees, agreed between themselves to jointly share in the commissions to be received by the respective agents from their respective principals, and that appellant in fact did so receive one-half of the commissions paid to Patterson by his principal, after deducting certain expenses incurred by Patterson in the matter. See 19 Cyc. p. 228; Armstrong v. O'Brien, 83 Tex. 635, 19 S. W. 268; Levy v. Spencer, 18 Colo. 532, 33 Pac. 415, 36 Am. St. Rep. 303; Tinsley v. Penniman, 12 Tex. Civ. App. 591, 34 S. W. 365.
Appellant insists, however, that he was employed only to find a purchaser, and that he did nothing further than this; the principals themselves finally agreeing upon terms and completing the transaction — citing, among others, the cases of Alvord et al. v. Cook, 174 Mass. 120, 54 N. E. 499; Cox v. Haun, 127 Ind. 325, 26 N. E. 822; Montross v. Eddy, 94 Mich. 100, 53 N. W. 916, 34 Am. St. Rep. 323; Manders v. Craft, 3 Colo. App. 237, 32 Pac. 836; Siegle v. Gould, 7 Lans. (N. Y.) 177; 19 Cyc. p. 234. These authorities support the well-recognized doctrine that a mere middleman, who has no right to fix prices or terms and has no authority to negotiate a sale, may collect commissions from both parties thereafter completing a sale; but a consideration of the evidence in this case leaves little, if any, room to doubt that appellant's employment was something...
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...dealing with all parties at arms length. Williams v. Knight Realty Co., 217 S.W. 755 (Tex.Civ.App.1919, no writ); Scott v. Kelso, 62 Tex.Civ.App. 163, 130 S.W. 610 (1910, no writ).An agent with fiduciary duties may not, without disclosing the fact, sell to a purchaser who is his wife. Green......
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