Levy v. Gross

COLLIEE, C. (after stating the facts as above). Charge numbered 5, above quoted, correctly states the law, where, as in this case, it appears that the brokers were charged with duties which required the exercise of their discretion. A real 'estate agent, who receives a commission from both the lessor and thr *628 lessee of a real estate lease, must prove that such relation was known by both parties, and that they both assented thereto. Skirvin v. Gardner et al., 36 Okla. 613, 129 Pac. 729. “A broke]-, acting for both parties in effecting an exchange of property, can recover compensation iron neither, unless his double employment was known and assented to by both.” Walker v. Osgood, 98 Mass. 348, 93 Am. Dec. 168. One cannot act as agent for both seller and purchaser, unless both know of the assent to his undertaking, and receive compensation from both. Holcomb v. Weaver, 136 Mass. 265; Byrd v. Hughes, 84 Ill. 174, 25 Am. Rep. 442; Atlee v. Fink, 75 Mo. 100, 42 Am. Rep. 385; Scribner v. Collar, 40 Mich. 375, 29 Am. Rep. 541. Plaintiffs herein are real estate brokers, and attempted to serve two masters in one transaction. There is the highest authority for saying “that this cannot be clone.” Matthew, 6:24. But defendant did not plead that plaintiffs, unknown to him, were also- to be paid a commission by the lessor, or that he assented thereto, and the court committed reversible error in. giving .said instruction numbered 5. In Chambers v. Van Wagner, 32 Okla. 774, 123 Pac. 1117, this court held: “An instruction upon a material issue, not raised by the pleadings, when excepted to, is reversible error.” See, also, American Jobbing Association v. James, 24 Okla. 460, 103 Pac. 670. Inasmuch as the giving of charge numbered 5 was reversible error, it is not thought necessary to consider the other assignments of error presented, and hence same will not be considered. *629 For the error pointed out, this case should be reversed and remanded. By the Court: It is so ordered.