Winter v. Carey
| Decision Date | 02 December 1907 |
| Parties | ROBERT L. WINTER, Respondent, v. THOMAS CAREY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
REVERSED.
Judgment reversed.
Bowersock & Hall for appellant.
(1) An agent or broker cannot recover a commission from his principal, when he has received pay from the other party without his principal's consent. Mechem on Agency (1 Ed.), secs. 455, 972; DeSteiger v. Hollington, 17 Mo.App. 382; Robinson v. Jarvis, 25 Mo.App. 421; Reese v. Garth, 36 Mo.App. 641; Chapman v Currie, 51 Mo.App. 40; Norman v. Roseman, 59 Mo.App. 682; McClure v. Ullman, 102 Mo.App. 697; Atlee v. Fink, 75 Mo. 100; Scribner v Collar, 40 Mich. 375; Walker v. Osgood, 98 Mass. 348; Rice v. Wood, 113 Mass. 133; Meyer v Hanchett, 43 Wis. 246; Warrick v. Smith (Ill.), 27 N.E. 709; Finch v. Redding (Pa.), 26 A. 368; Wadsworth v. Adams, 138 U.S. 380. (2) This is true even where there is a custom authorizing such double charges. Farnsworth v. Hemmer, 83 Mass. 494. (3) And it is immaterial that both parties knew of the double charge, if they did not consent to it. Rice v. Davis (Pa.), 20 A. 513.
Ball & Ryland, for respondent, filed an argument.
--Plaintiff is a real estate agent and seeks to recover from defendant $ 1,250 as commission for leasing for a long term certain of defendant's real estate in Kansas City to one Medes. He recovered judgment in the trial court for that sum with interest.
It is alleged in the petition that after plaintiff "had procured the arrangement and agreement to be made between defendant and Medes, and in order to save defendant as much of the costs and charges, by way of commission, as possible, he arranged and agreed with said Medes that the latter should pay of the commission charges the sum of one thousand dollars." It is then alleged that plaintiff "upon the consummation of the lease and the execution and delivery of the same, rendered to the defendant a bill and account for defendant's part of said commission, of twelve hundred and fifty dollars." It is further alleged that said charge was much less than usual and customary.
There was evidence in plaintiff's behalf tending to show that $ 2,500 would be a reasonable charge for negotiating the lease. At the close of the evidence defendant submitted a demurrer thereto which the court refused. The court gave for plaintiff two instructions which based plaintiff's right to recover upon the question whether he rendered the services "in good faith." In a third instruction it was declared as follows: "Although the jury may find and believe from the evidence that during the negotiations Medes agreed with plaintiff to pay him and afterwards did pay him $ 1,000 on account of commissions, yet if the jury further find and believe from the evidence that plaintiff made this arrangement and accepted this payment with the intent and purpose of reducing the charge and commission which he was entitled to charge as defendant's agent, then the fact of such agreement with and payment by Medes would constitute no defense to this suit, although defendant was not informed of such fact until afterwards."
There is scarcely a rule of law which has received more uniform approval than that an agent cannot serve the opposing party without the knowledge and consent of his principal. The law, recognizing that, in general, human nature is too weak to assure faithful service in such circumstances, has absolutely forbidden such dual position, and if it be taken, the agent is denied any redress. [DeSteiger v. Hollington, 17 Mo.App. 382; McClure v. Ullmann, 102 Mo.App. 697, 77 S.W. 325; Atlee v. Fink, 75 Mo. 100; Scribner v. Collar, 40 Mich. 375; Walker v. Osgood, 98 Mass. 348; Rice v. Wood, 113 Mass. 133; Mechem on Agency, secs. 455, 972.]
The foregoing authorities disclose that good faith on the part of the agent and lack of harm to his principal will not interfere with application of the rule, for it is founded in public policy. And so it is expressly decided by the Supreme Court in Atlee v. Fink, supra. In Everhart v. Searle, 71 Pa. 256, it is said that "it matters not that there was no fraud meditated and no injury done; the rule was not intended to be remedial of actual wrong, but preventive of the possibility of it." In McClure v. Ullmann, 102 Mo.App. 697, 77 S.W. 325, Judge BLAND said that
The argument in plaintiff's behalf may be regarded as suggesting two views, either of which, it was said, ought to place his case outside the rule and sustain the judgment. One is that after a deal between antagonistic parties has been closed, the agent of one may accept a gratuity from the other. We do not intend to dispute the proposition,--it is not in this case,--that after the deal between opposing parties has come to an end, an absolute gratuity might be accepted by an agent from his principal's antagonist in the deal without transcending the rule of law we have stated. There may be exceptional circumstances where such an act could be fully explained and justified; for, otherwise, if not fully explained by the agent, his situation with a discerning court and jury would probably be embarrassing.
But that is not this case. For here, while not directly admitted, yet it appears by the testimony of both plaintiff and Medes that before the agreement had been closed the former had demanded of the latter $ 1,000 as commission and the latter agreed to pay it. Plaintiff testified that the amount of the rental per year had been agreed upon before he asked Medes to pay him a commission, but his entire evidence taken together shows that the negotiations were not at an end. Medes testified that the rental might have been agreed upon, but he was certain that the commission was asked of him long before the negotiations leading up to a complete agreement had been reached. The mere agreement on the amount of the annual rental in a lease of this kind which involves the building of a house and a great variety of important considerations and stipulations is far from being the whole deal. Plaintiff's duty to this defendant did not cease with the agreement between the parties as to one point in the lease.
But we need not discuss the evidence on this head, for it is conceded in plaintiff's third instruction above set out, that it was during the negotiations for the lease that plaintiff and Medes made their agreement as to the commission. The jury was there instructed that the agreement, though made "during the negotiations" would not prevent a recovery.
Plaintiff relies much on the case of Carr v. Ubsdell, 97 Mo.App. 326, 71 S.W. 112. In our opinion that case does not aid him. There was no plea or defense of dual agency in that case. The defense was that Carr was the agent of the buyer only and therefore the seller was under no obligation to pay...
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