Scribner v. Collar

• Decision Date: 31 January 1879
• Citation: 40 Mich. 375
• Court: Michigan Supreme Court
• Parties: William R. Scribner and Frederick A. Potter v. Allen P. Collar

40 Mich. 375

William R. Scribner and Frederick A. Potter v. Allen P. Collar

Supreme Court of Michigan

January 31, 1879

Submitted January 24, 1879

Case made from Superior Court of Grand Rapids. Submitted January 24. Decided January 31.

Judgment reversed with costs and a new trial ordered.

Champlin & More for plaintiffs. Middlemen who simply bring together the parties to a trade and have no share in the negotiations can receive commissions from both (Herman v Martineau, 1 Wis. 151; Stewart v. Mather, 32 Wis 344); as in case of real estate brokers, Mullen v Keetzleb, 7 Bush 253.

S. A. Kennedy for defendant. One cannot at the same time be agent for vendor and purchaser, Meyer v. Hanchett, 39 Wis. 419; People v. Township Board, 11 Mich. 222; Clute v. Barron, 2 Mich. 192; Dwight v. Blackmar, id., 330; Ames v. Port Huron Log Driving Co., 11 Mich. 139; Bollman v. Loomis, 41 Conn. 581: 15 Amer. L. Reg. [N.S.], 75, with note by Redfield.

Graves, J. The other Justices concurred.

OPINION

Graves, J.

The plaintiffs recovered judgment against defendant for certain commissions, and a review of the proceedings is asked upon a case made.

The defendant owned certain real estate he wished to sell or exchange, and he employed the plaintiffs to aid him. The arrangement was in writing and signed by defendant in a book kept by plaintiffs for such entries. After designating the property and the price and setting down the amount to stand on mortgage and the time of credit and rate of interest, it proceeded as follows:

"I hereby place the above described property in the hands of Messrs. Scribner and Potter for sale, or exchange for farm property at my option, and agree to pay them a brokerage commission of 2 1/2 per cent. when sale or exchange is made, and further agree to render all the assistance I can in making such sale or exchange."

At the same time this arrangement was made, the plaintiffs were under a similar retainer from persons by the name of Warren, who had a farm they wished to sell or exchange. Of this fact the defendant was ignorant.

In the course of a few weeks the plaintiffs facilitated the opening of negotiations between the Warrens and defendant, and the parties not long after, through the aid of plaintiffs, consummated a trade, the Warren property, however, being granted to Homer A. Collar, a son of defendant. There were some special circumstances connected with the substitution of the former for the latter as grantee which are somewhat obscure, to say the least, but the result is not governed by them. After this trade it was ascertained by the defendant that during the negotiation the plaintiffs were acting under retainer from the Warrens, and for an agreed compensation, and he objected in the court below and objects here that the fact is a complete answer to the action.

The plaintiffs' counsel have not contested and do not contest the principle that the same person cannot be the agent of both parties in reference to a matter where discretion is to be exercised upon interests which are conflicting. He contends that the plaintiffs were not in that situation, but on the contrary that the retainer taken by the plaintiffs required them to do no more than bring the parties together, and that in this the interests of defendant and the Warrens were concurrent and not conflicting; that these persons were left to negotiate as they pleased and uninfluenced by the plaintiffs; that no opportunity existed for any infringement of good faith, and that it was just and lawful to take employment and pay from both sides. There is nothing in the record to impugn the personal fairness and integrity of purpose of the plaintiffs in this transaction, and the only question is whether the undisclosed arrangement to act for each side so accords with public policy as to afford a ground of action to recover pay for the service. There is some contrariety of decision in regard to the right to accept a double retainer and double pay, even when the fact is disclosed to both parties. Farnsworth v. Hemmer, 83 Mass. 494, 1 Allen 494; Walker v. Osgood, 98 Mass. 348; Pugsley v. Murray, 4 E.D. Smith 245; Everhart v. Searle, 71 Pa. 256; Raisin v. Clark, 41 Md. 158; Schwartze v. Yearly, 31 Md. 270; Morison v. Thompson, L.R., 9 QB 480: 10 Eng. 129; Rice v. Wood, 113 Mass. 133; Lynch v. Fallon, 11 R.I. 311.

But the cases are nearly, if not quite, uniform that where the double employment exists and is not known, no recovery can be had against the party kept in ignorance, and the result is not made to turn upon the presence or absence of designed duplicity and fraud, but is a consequence of established policy.

The opinion has been expressed that where the person is employed merely as a middleman to bring persons together...