Atterbury v. Hopkins

ELLISON, J. Defendants engaged the plaintiffs, for a stated commission to sell or exchange for them their stock of hardware and a house and lot, all in the town of Brunswick. Plaintiffs charge that they procured a purchaser for the property and that defendants refused to pay them their commission, whereupon they instituted this action. They prevailed in the trial court. Much of the matter urged by the appellant against the judgment is outside the issues made by their answer and the theory upon which they tried the case in the circuit court. The answer admits the employment of plaintiffs and that they procured a purchaser, and sets up but one defense and that is, that plaintiffs accepted employment at their hands when, without their knowledge or consent, plaintiffs were also in the employment of such purchaser. The law is that one cannot secretly act for one party while in the employ of the opposing party and that if he does he forfeits all right to compensation at the hands of the party thus deceived and betrayed. The reason for this just rule ceases, however, if there is no deception and each of the opposing parties are aware of the dual agency. “If having full knowledge of his relations to each, they see fit mutually to confide in him, there can be no legal objection to such an employment, nor will either of the principles he permitted afterwards to escape rsponsibility because of such employment.” [Mechem on Agency, sec. 67; Stripling v. Maguire, 108 Mo. App. 594.] The issue in respect to the law thus stated was fully and fairly submitted to the jury and the verdict, being supported by the evidence, we accept as conclusive. In our statement concerning the answer we have not overlooked the following clause thereof, “defendants for their first amended answer to plaintiffs’ petition, deny each and every allegation therein contained except so much thereof as is herein expressly admitted.” Such mode of pleading is not allowable under our statute and [176] has been frequently condemned. [Bliss on Code Pleading, sec. 331; Dezell v. Fidelity Co., 176 Mo. 253, 279; Boles v. Bennington, 136 Mo. 522; Young v. Schofield, 132 Mo. 650; Long v. Long, 79 Mo. 644.] A denial may be a general denial, but as a general denial, it cannot be qualified by unspecific exceptions which leave the opposite party the burden and the risk of finding out what the exceptions are. The answer closes by alleging that the sale and exchange “was never consummated, by reason of which plaintiffs are not entitled to recover of defendants.” We do not regard that as stating any defense. The mere fact that the sale was not consummated without stating some reason is of no consequence. It may have failed by the fault of defendants. Defendants make a point against the judgment of the following nature: That the hardware stock was owned by them, in partnership and the house and lot was owned by them as tenants in common; that the evidence only tends to show that Hopkins had notice of the dual agency of plaintiffs; and while that would be notice to Schrenk as a partner, it was not notice to him as a tenant in common. There is no necessity for going into the question thus raised, for the reason that the evidence conclusively shows that Hopkins was the active party for defendants and represented his co-defendant Schrenk. It is of no consequence how defendants held the property. If one acted for the other he was his agent and notice to him was notice to the other. [Mechem on Agency, secs. 718, 719.] There was no contention at the trial, so far as the record discloses, of the purchaser not being financially able to carry out his contract and no such issue could arise on the pleadings. No new theories can be advanced which were not presented in the circuit court. The case as made there must limit our consideration here. [Hill v. Drug Co., 140 Mo. 433.] [177] The whole case as made up was fully and fairly tried and hence we affirm the judgment. All concur.