Tracey v. Blake

Crosby, J. This is an action to recover a commission for services rendered by the plaintiff in connection with the exchange of an apartment house in Boston, owned by one Scheffreen, for certain real estate in Worcester, owned by the defendant. The contention of the plaintiff that he was merely a middleman and not a broker cannot be sustained. The distinction between a middleman and a broker is clearly defined and has been pointed out by many decisions of this court. A middleman is not subject to the rules governing brokers. He is employed .merely to bring the parties together, when each desires to exchange his property for that of the other, or where one desires to sell and the other to purchase property. In such a transaction, the services are not rendered by one acting as the agent of either party. He merely puts them in a position where they may make their own contracts, and he may later receive a commission from both. Rupp v. Sampson, 16 Gray, 398. The distinction between a broker employed as the agent of a person to buy, sell or exchange property, and a middleman is pointed out in Walker v. Osgood, 98 Mass. 348. In the case at bar, it is plain that the plaintiff acted not as a mere middleman, but as a broker in the transaction, and was the defendant’s agent. The declaration alleges that “the defendant undertook and agreed to pay to the plaintiff the usual commission for procuring a customer for or for the effecting of such exchange;” the plaintiff testified, “ I was the broker representing Mr. Blake;” he introduced evidence to show the usual broker’s commission for procuring a customer for such property. The judge, in his charge to the jury, treated the action as one brought to recover a broker’s commission, and the bill of exceptions recites that it is an action brought for that purpose. It is manifest that the case was treated by the parties and by the presiding judge as an action to recover a broker’s commission and not for services rendered as a middleman. No exception was taken by either party to that part of the judge’s charge in which he stated to the jury that it was “simply a case of a broker employed.” He made no reference to the difference between a broker and a middleman. The question cannot now be raised. The undisputed evidence shows that the plaintiff agreed to [61] give to the broker who acted for Scheffreen one half of his commission, although there was no agreement that the plaintiff should be paid any part of the commission which Scheffreen’s broker was to receive. The agreement between the plaintiff and the broker acting for Scheffreen was not known either by the defendant or by Scheffreen. This secret agreement by which Scheffreen’s broker was to get not only a commission from him but was to receive also one half of the plaintiff’s commission, was a direct fraud upon Scheffreen; this fraud was participated in by the plaintiff. Whether the defendant was harmed or benefited is immaterial: such an agreement is against public policy. And while the agreement in the present case, differs from the one disclosed in Quinn v. Burton, 195 Mass. 277, in that the plaintiff in that case was to share in the commissions paid by both parties, still in principle the cases cannot be distinguished. The employment of the plaintiff by the defendant was such that he was bound to act with the utmost fidelity and good faith, free from any secret and fraudulent agreement which might subject him, or Scheffreen’s broker, to temptation to act adversely to the interests of his employer. The record shows that Scheffreen’s broker was to receive from him a commission of $500; that broker was to receive also one half of the plaintiff’s commission, which would result in Scheffreen’s broker being paid a sum very largely in excess of $500 out of the commission to be paid by the defendant. The fact that the plaintiff was not to share in the commission which Scheffreen was to pay cannot divest the bargain of its illegal character. It was a fraudulent transaction, contrary to public policy, which would prevent the plaintiff from recovering any commission from the defendant. Thwing v. Clifford, 136 Mass. 482. Quinn v. Burton, supra. Sullivan v. Tufts, 203 Mass. 155. Maxwell v. Massachusetts Title Ins. Co. 206 Mass. 197. The case of Alvord v. Cook, 174 Mass. 120, is not an authority in favor of the plaintiff. The decision in that case rests upon the special contract entered into by the parties as pointed out in Quinn v. Burton, supra, and is distinguishable from the case at bar. So far as the case of Chase v. W. G. Veal & Co. 83 Texas, 333, cited and much relied on by the plaintiff, is contrary to the conclusion herein reached, we cannot follow it. [62] In view of the conclusion reached, we need not determine whether the agreement entered into by the plaintiff with Scheffreen’s broker is in violation of St. 1909, c. 514, § 28, and thereby made a criminal offence which would preclude the plaintiff from recovery. As for the reasons stated the plaintiff cannot recover^ it is unnecessary to decide whether the federal revenue stamps placed on the deeds delivered by the parties were competent evidence of the value of the property conveyed thereby, or were admissible for any other purpose. The defendant’s first request for a ruling that the plaintiff is not entitled to recover should have been given. The exceptions must be sustained and judgment should be entered for the defendant in accordance with St. 1909, c. 236. So ordered.