Springsteen v. Lewis

GILBERT, Circuit Judge (after stating the facts as above). The defendants contend that the power of attorney was not sufficiently broad in its scope to authorize their agent to employ the plaintiff, and they cite authorities to the doctrine that a broker with special authority to sell real estate has no implied power to delegate his authority to another or to employ a subagent. Here there was no delegation of authority other than the employment of a sub-agent to do a certain designated act, and under a general power of attorney such as that here involved, which was a power to conduct and prosecute all of the principals’ business and to dispose of all their property, it is well settled that the agent has power to employ another to find a purchaser for the principals’ real estate. “An agent authorized by the owners to sell lands may, having exercised his own discretion as to price and terms, after an examination of the property, delegate to his subagent authority to find a purchaser.” 2 C.J. 689; Renwick v. Bancroft, 56 Iowa, 527, 9 N.W. 367; Gold v. Serrell, 6 Misc. 124, 26 N.Y.S. 5. At the time of the contract between the plaintiff and the defendants through the latter’s agent, the defend [806] ants were outside of- Alaska, and so remained for a considerable period of time. When the $5,000 was paid to the agent, he turned it over to the defendants. He had already notified them of the option to Greenberg, and he testified that in 1913 he sent them a copy of the option. By accepting and retaining the $5,000 with full knowledge that the same had been received upon an optional agreement, the defendants ratified the act of their agent in entering into that agreement. Senger v. Malloy, 153 Wis. 245, 141 N.W. 6; Johnson v. Ogren, 102 Minn. 8, 112 N.W. 894. At the close of the testimony the defendants moved for an instructed verdict in their favor on the ground that the plaintiff had failed to make out a case. They contend that under the agreement between the agent and the plaintiff there can be no recovery, and they say that the agreement clearly contemplated a sale and not an option. The plaintiff’s evidence was in substance that the agreement was oral, and that he induced Greenberg to take on October 29, 1912, an option on the mining claims under the agreement as alleged in the complaint, and that on January 11, the $5,000 was paid; that he demanded of the agent his proportion of that payment, and the agent made excuses for delay, and asked the plaintiff to wait until the defendants came to Alaska in June. He further testified that, for the purpose of putting his oral agreement into a written form, the plaintiff, in June, 1913, induced the agent to execute the written agreement which was antedated as of September 28, 1912, the date of the oral agreement. Now, the written agreement adopts the word “sale” instead of optional agreement or optional sale, and it does not in fact exhibit the actual oral agreement between the plaintiff and the agent, as so testified to by the plaintiff, and it was not intended and it should not be held as a matter of law to control or supersede the original contract under which the plaintiff acted and under which the $5,000 payment had been made. The written agreement was made long after the date of the oral agreement, and long after the optional agreement was obtained, and payment was made thereunder, and it does not have the effect to estop the plaintiff to state the truth of the matter. The court below fairly instructed the jury on this feature of the case and charged [807] them that the plaintiff could recover only in case they found that the defendants through their agent authorized him to enter into or negotiate an optional contract, and that he was instrumental in securing Greenberg to enter into the same. But the court also charged the jury that if they found that the written agreement duly evidenced the agreement between the parties, and the defendants, their verdict must be for the defendants. There was evidence to show that the plaintiff expected a commission, not only from the defendants, but from Greenberg. For that reason the defendants contend that the plaintiff cannot recover. The court properly, we think, instructed the jury to the effect that a general agent cannot act as such for both parties to the same transaction in matters which involve the exercise of discretion where the interests of the parties are conflicting, and that, if he does, he cannot recover any commission from either unless he does so with the knowledge and consent of both, and that, if a broker merely brings together the parties to a sale and they themselves settle the terms or complete the deal, he acts as a middleman and may accordingly recover commission from each party if each has promised it. The evidence was that the defendants before leaving Alaska had fixed for the mining claims a price which they communicated to their agent. That price was $23,000. The agent informed the plaintiff that the sale must net $23,000 to the defendants. What contract, if any, the defendants had with their agent as to commissions or compensations, is not shown. The agent acted upon the theory that he was entitled to receive as his commission all that was realized over and above the net price so fixed. There is no evidence that he was not authorized to do this. He and the plaintiff intended to divide commissions. The first price mentioned to Greenberg was $35,000. He offered to pay the plaintiff $2,500 if the price fixed in the option could be reduced to $30,000. The plaintiff testified that he communicated this offer to the agent, and that agent consented to reduce the price to $30,000. Now, if it was true, as the evidence indicates, that the agent was authorized to retain as his commission all that he could obtain for the property over and above $23,000, he and the plaintiff in reducing the price in the option were dealing with a mat [808] ter which pertained to themselves only, and did not affect the defendants, and in entertaining the offer of Greenberg to pay him $2,500 the plaintiff was not acting in hostility to the defendants’ interests. In view of all the evidence, we are not convinced that the court erroneously instructed the jury on this branch of the case, or that recovery should be denied the plaintiff on the ground that he acted in a double capacity in the" transaction. We find no merit in the contention that the plaintiff is not entitled to recover a commission for the reason that he had no license as a broker under section 2569, Compiled Laws of Alaska. The plaintiff was not engaged in the business of a broker. He was a merchant, and there is no evidence that he ever attempted to make a sale of real estate other than that which is here involved. In 9 C.J. 513, it is said: “One who, while engaged in other business, makes a single or occasional sale, or other transaction for another, under a special contract, is not a broker, and is not required to take out a license as such.” Smith v. Sharpe, 162 Ala. 433, 50 So. 381, 136 Am.St.Rep. 52; O’Neill v. Sinclair, 153 Ill. 525, 39 N.E. 124; Pope v. Beals, 108 Mass. 561; Woods v. Heron, 229 Pa. 625, 78 A. 1128; Johnson v. Williams, 8 Ind.App. 677, 36 N.E. 167. Also without merit is the contention that it was error to deny the defendants’ motion for a continuance when on the trial the court permitted the plaintiff to amend his complaint and insert the word “optional” before the word “sale” wherever the word “sale” appeared. The original complaint is not before us, and we have no information of its contents. It appears from the motion for a new trial that the amendment was claimed to be an abuse of discretion. It is inconceivable that the defendants could have been in - any way injured by the amendment. According to their contention, they knew nothing of any contract- between their agent and the plaintiff, and could have furnished no testimony on the issues so changed, if they were changed, by the amendment. We find no error. The judgment is affirmed.