Ebert v. Haskell

Sheldon, J. The plaintiff was not a mere middleman charged with no other duty than that of bringing possible purchasers into communication with the owner of the property. In the second count of his declaration, the only one upon which he relied at the trial, he averred that he had been authorized by the trustees of the Boston Young Men’s Christian Association to sell the property, and that he offered it for sale to the defendant. His testimony at the trial, although apparently he sometimes sought to avoid calling himself a broker, was to the same effect. But in legal intendment he described himself always as an agent or broker, and not as a mere middleman. Accordingly he owed to the owner all the [211] duties of a broker employed to sell the property, and not merely those of a middleman who undertakes nothing more than to bring the parties together and leave them to make their own bargains. It follows that such cases as Rupp v. Sampson, 16 Gray, 398, can give him no comfort. As such a broker the plaintiff was bound not to put himself in a position antagonistic to the owner’s interests; Quinn v. Burton, 195 Mass. 277; and he could not enforce against any party to the transaction an agreement by which he should pledge himself to conduct inconsistent with this obligation on bis part. There was a fiduciary relation between the plaintiff and his principal, the owner of the property, and he was bound, not only to exert his skill and best efforts for the benefit of his principal, but to disclose to the latter all facts material to the transaction which should come to his own knowledge. Young v. Hughes, 5 Stew 372. Beury v. Davis, 111 Va. 581, 588. Pratt v. Patterson, 112 Penn. St. 475. Hobart v. Sherburne, 66 Minn. 171. He can enforce no agreement relating to the sale of the property made by him either with his principal or with a third party, by which he undertakes to do anything or to subject himself to the temptation of doing anything inconsistent with the full discharge of his obligations toward his principal. Sullivan v. Tufts, 203 Mass. 155. The courts will refuse to enforce such a contract, not merely if its avowed purpose is to bring about the doing of unlawful acts, but if by making it and complying with it the plaintiff put himself into a position where there was a strong inducement for him to violate his duty to his principal, where he became subject to a wrong influence to do what might affect injuriously the interests of his principal. Fuller v. Dame, 18 Pick. 472, 481. If this was the case, it is not material whether the principal actually suffered loss or injury. Quinn v. Burton, 195 Mass. 277, 279, and cases there cited. The name of the proposed purchaser, or of the firm by which the defendant was employed and which stood in the position of a purchaser, was highly material here, especially in view of the fact that the plaintiff’s contention is that the reason for the purchaser’s desire to keep this secret was, as the plaintiff was informed, an apprehension that if the name was made known a higher price might be demanded for the property. In this respect the [212] case is unlike Veasey v. Carson, 177 Mass. 117. See Pratt v. Patterson, 112 Penn. St. 475, 479; Wilkinson v. McCullough, 196 Penn. St. 205; Young v. Hughes, 5 Stew. 372. The plaintiff contends that he communicated to Mehaffey the fact that the proposed purchaser desired to keep his name secret, and that Mehaffey acquiesced in such concealment. But the plaintiff has not contended that he communicated even to Mehaffey his bargain with the defendant that the latter should pay him a commission if he would not disclose the fact that the defendant or one whom the defendant represented was considering a purchase of the property, or the further fact that the reason of the defendant’s desire for this secrecy was that whenever his employers were known as buyers they generally had to pay more for the property than they cared to pay. It is true that the plaintiff said in one part of his testimony that he disclosed to Mehaffey everything that he had done with the defendant except to state the name of the possible purchaser. But this is so explained in the rest of his testimony as to leave it open to no possible doubt that he did not disclose to Mehaffey either his own secret bargain with the defendant or the reason that had been given by the defendant for desiring secrecy. The conceded facts here are shown by the whole of the plaintiff’s testimony; it is not merely a case of inconsistent statements made by him in different parts of his testimony, where the jury must determine which of them are true, as in Cameron v. New England Telephone & Telegraph Co. 182 Mass. 310, and Larson v. Boston Elevated Railway, 212 Mass. 262, 267; it resembles rather Tupper v. Boston Elevated Railway, 204 Mass. 151, 153. These were important facts to guide the action of the plaintiff’s principal, and it was a breach of his duty not to disclose them. And it may be added that upon the evidence even a full disclosure of the facts to Mehaffey, if nothing more appeared, would not have availed the plaintiff. There was no evidence that Mehaffey had authority to consent to the plaintiff’s making such terms with the defendant, or failing to perform all his obligations to the owner of the property, and there was affirmative evidence that Mehaffey had no such authority. This case much resembles Pratt v. Patterson, 112 Penn. St. 475, Wilkinson v. McCullough, 196 Penn. St. 205, and Talbott v. Luckett, [213] 30 Atl. Rep. (Md.) 565. It is governed by the principle stated in those decisions. This conclusion makes it unnecessary to consider the admissibility of the evidence which was received under the defendant’s exception. Judgment must be entered for the defendant on the verdict. So ordered.