Meyer v. Hanchett

Cole, J. The judgment of nonsuit in this case was fully [249] warranted, under the circumstances, by the decision made on the former appeal. 39 Wis., 419. It was there in effect decided, that the plaintiffs could not act as the agents of the seller and purchaser without the knowledge and assent of both principals that they might undertake such mutual agency and receive commissions for their services. The law will not allow a person to assume such a double agency, or hold the inconsistent and repugnant relations which it imposes, certainly not without the full consent of both parties freely given. Oases might be cited which hold a stricter rule, and which condemn, on grounds of public policy, such double agency, even when exercised with the knowledge and consent of both principals. But it is not necessary to go that length in this case. It is sufficient here to say that the plaintiffs could not recover commissions for services rendered the defendant while they were acting for Hobart in the same transaction, unless their relations to Hobart were made known to the defendant, and he consented to their so acting. The law upon this subject is too well settled to require further comment. But it was claimed that the evidence showed, or at least .that the jury might have found, if the question had been submitted to them, that the plaintiffs did not act as agents for or in the interest of either party, but were mere middlemen to bring the parties together to enable them to make their own contract. In such a case, it is said, the law would allow them to recover commissions from both, according to the value of the services rendered to each. We do not think, however, any such inference could properly be made, upon the evidence. The plaintiff Meyer testified, in substance, that the defendant first applied to him to effect a loan upon his farm; that he failed to procure the loan, and subsequently wrote to the defendant to find out whether his farm was yet in the market for disposal. Then followed the correspondence which was put in evidence. The letters on both sides, and other evidence, clearly show that the plaintiffs were employed by the [250] defendant to sell or exchange his property. About this there cannot possibly be a question. Meyer says, in substance, that the plaintiffs rendered considerable services, and exerted themselves to a considerable extent, in disposing of this farm; advertised it for sale; went tp expense on account of it; negotiated with a party in Boston and with Hobart in relation to it; spent a good deal of time in making the sale; and charged the ordinary rates for selling country property. This is believed to be a fair summary of his testimony, and, when considered in connection with the other evidence, leaves no room for doubt as to the capacity in which the plaintiffs acted. It is evident that the plaintiffs well knew they were something more than mere middlemen to bring' the parties together. They were in fact employed by the defendant to sell his farm or exchange it for other property; and this they seem to have fully understood. Such being their position, it was, of course, their imperative duty to do the best they could for his interest in any trade which they might make. And this brought them clearly within the rule which forbids an agent from acting for both seller and purchaser in the same transaction without fully disclosing his relations to the parties. In conformity to the former opinion, the defendant, on the trial, was permitted to testify that in the negotiations between him and the plaintiffs they never notified him that they would seek to recover compensation for their services from both parties; and it is not pretended that the defendant had any knowledge of their relations to Hobart except such as the correspondence afforded. In his answer, the defendant states that he dealt with the plaintiffs as the agents of Hobart, and not otherwise, and that he understood and believed that they were acting for Hobart in making the trade. These allegations in the answer were overlooked by us as well as by counsel, on the other appeal. It is now claimed that they conclusively show that the defendant knew the relations of the plaintiffs [251] to Hobart at the time, and ought not now to be beard to deriy it. Assume, for the argument, that these relations were known to the defendant: there certainly is not one particle of proof that he ever consented that they should act as agent for both parties, which fact should clearly appear in order to render him liable for their commissions. So, in any aspect, we think there was no error in withdrawing the case from the jury and granting the nonsuit. By the Court. — The judgment of the circuit court is affirmed.