Atwater v. Lockwood

PARK, J. The plaintiff cannot recover in .this suit unless he establishes the fact that he was employed by the defendant to act fox him in the sale of his land. The plaintiff concedes that he was riot expressly employed, and the only question for us to determine is whether the facts of the case show an employment by implication of law. The fact is substantially found that the defendant never knew during- the transaction of sale that the plaintiff was acting for him, or was rendering any intentional service for his benefit, and we can discover nothing whatever in the case that tended to give him such information. We think it is clear that no person of common understanding, in the place of the defendant, would imagine that the plaintiff was rendering service for him under the expectation of receiving compensation for the same. Indeed, at the time of the sale, and while the defendant was engaged in negotiating, with the purchaser in regard to the price, the plaintiff spoke disparagingly of the value of the land, in the presence and hearing of the purchaser, and suggested that the price which the defendant asked for it was too large. This conduct of the plaintiff is in strong opposition to the claim that the plaintiff was then, or had been, acting for the defendant as his agent in procuring the purchaser. Unless the defendant knew while the service was being rendered that the plaintiff was acting for him, or had such information on the subject as would cause a person of ordinary understanding under like circumstances to believe that he was so acting, no implication of employment can be made. A contract is the meeting of the minds of the contracting parties, and where there is no express contract, the party sought to be charged must have such knowledge, or what is equivalent thereto, be [50] fore his mind can act on the subject, and assent to the terms of the contract. We are satisfied from the facts found that no contract existed in this case, and we therefore advise judgment for the defendant. In this opinion the other judges concurred, except Carpenter, J., who was absent.