Metschan v. Swensson

Mr. Justice Bean delivered the opinion of the court. Neither the evidence as given on the trial, nor the findings of fact, are a part of the transcript. The only question for decision, therefore, is whether the pleadings sustained the judgment rendered by the court below, and this hinges on the construction of the writing set out in the complaint. 1. If defendant was a mere agent of plaintiff for the sale of the property described in such writing, any money received by him from Shorey belonged to plaintiff; for an agent is not permitted to make a profit to himself out of the subject-matter of the contract beyond his lawful compensation: 1 Clark & Skyles, Agency, § 406; Pierce v. Powell, 57 Ill. 323; Chezum v. Kreighbaum, 4 Wash. 680 (30 Pac. 1098: 32 Pac. 109). 2. The defendant does not controvert this rule, but his position is that by the terms of the contract he reserved an option or interest in the property for six [546] months, which he could sell or dispose of for his own benefit, and whatever money he received therefrom belonged to him. But there is no language in the contract which will support this contention. It does not purport, in terms, to give defendant an option on the property, or any interest therein. ' On the other hand, there is apt language used to constitute him a mere agent for the sale of the property. All that appears from the pleadings and the contract is that plaintiff became the owner by purchase, through the defendant, of certain real property, for the sum of $15,000, $1,000 of which was to be retained by him for six months, in consideration of which the defendant was authorized- to hold said described “property for sale” at the price of $16,000, and if he did not make a sale for that amount within the specified time, he was to forfeit the $1,000, but, if he did, it was to be paid to him; and, if the property sold for more than the sum stated, he was to receive 2i/2 per cent commission on the purchase price. These are the only provisions of the contract which, in any. way, tend to show the nature -of defendant’s interest, and all that can be extracted from them is that he was to be the exclusive agent for the sale of the property for six months, at a certain stipulated price, for which he was to receive $1,000 if he sold it for $16,000 net, and an additional 2% per cent on the purchase price if in excess of that sum. But that does not give him an option on, or an interest in, the property itself. Notwithstanding the contract, plaintiff could have sold the property at any time, and conveyed a good title to the purchaser. Neither the defendant, nor any one claiming under him, could have compelled a specific performance of the contract, either against plaintiff or a purchaser from him. The title to the property remained in the plaintiff, and' defendant’s rights were only that of an agent for its sale. It follows that the judgment must be affirmed, and it is so ordered. Affirmed: Rehearing Denied.