Tinges v. Moale

Weisel, J., delivered the opinion of this Court. The appellant was plaintiff below. He sued the appellee at law for services, in the shape of commissions, as a real estate broker. A case was docketed by consent, and upon appearance and issues of fact was, with the consent of the parties, submitted to the determination of the Court, and judgment was rendered for the defendant. With a view to bring the cause to this Court on appeal, the proof was embodied in a bill of exceptions, concluding with a motion by the plaintiff’s counsel to the Court “to decide that the plaintiff was entitled to recover, inasmuch as it appeared from the evidence that the plaintiff was employed by the defendant to procure a purchaser for his dwelling house, and in the course of this employment he called the attention of Mr. Reinecker (the purchaser) to the house, showed him the property and secured an offer from him, •which the defendant subsequently took, and that the negó - tiation between the plaintiff and the said purchaser was the foundation on which the sale made by the purchaser rested.” The Court refused so to decide, but proceeded, in the form of an opinion, to state the facts as shown by the proof, and to apply to them certain principles of law'and adjudicated cases; upon the consideration of which, judgment was pronounced for the defendant. To the refusal to decide agreeably to the plaintiff’s motion, and to the judgment as given, the exception -was taken by the plaintiff. The opinion of the Court, incorporated in the bill of exceptions, thus becomes a part of the record before us, and it sets forth the facts as either found by the Court or proved upon the trial» with its view of the law as applicable thereto. The appellee filed a motion to dismiss this appeal, which was heard in connexion with the argument on the points [484] presented by the briefs. The motion to dismiss toolc the ground, that inasmuch as this cause was heard and decided below since thq^Constitution of 1864 went into operation, and that by the^th sec. of Art. 4, of said Constitution, the parties to any cause might submit the same to the Court for determination without the aid of a jury, the jurisdiction of the Court, in such cases, was limited and restricted, and as no appeal was specially given, none therefore lay. It was also contended, in support of the motion, that the record does not disclose what question of law was raised or made in, and decided by, the Court below; and that, therefore, this Court has nothing before it for its review. See 1 Code, Art. 5, seo. 12. s The provision of the Constitution authorising the parties to a suit at law to submit facts to the trial and determination of the Court, without the aid of a jury, cannot be regarded as restricting the jurisdiction of the Court, or as conferring upon it a special jurisdiction. There is no superadded jurisdiction of a limited or restricted character to the general jurisdiction of the Court, but a mere authorised change, in certain cases optional with the parties, in the mode of trying facts, already a part of its general jurisdiction. But this change does not enlarge the subject matter of appeals. With the facts as found by the Court below, upon such a submission, this Court has no more to do upon appeal than if they had been found by the jury. It is only upon the law arising upon facts, as admitted by the pleadings, or agreed by the parties, or found, or to be found, by the jury, ( or by the Court when substituted for the jury,) and raised in the modes adopted in our practice, that this Court has to deal in appeals from judgments of Courts of Law; and when such questions appear by the record to have been raised and decided below, the right of appeal is undoubted, and is secured by the general language of the 3rd sec. of Article 5th of the Code of General Laws. [485] In tins ease, we cannot examine the facts in evidence in the bill of exceptions with a view to adjudge whether the finding by the Court was, or was not, correct. As to that branch of the case, no appeal lies, and we entertain none. If a question of law has been raised upon them below for decision, and that appears from the record, it is our duty to examine and pronounce upon it. We can look to tbo character of the facts in proof only so far as may be necessary or proper to understand and apply the law in question. In this case, had a jury been impanuelled, and an instruction prayed in the language of the motion that was addressed to the Court, it would have been rightly rejected as not, covering the whole case. The Court was asked, in the form of a motion, to adopt what was stated in it as the law of the case, and to decide it accordingly. But the whole matter being before the Court, first to ascertain from the proof the facts, and then to apply the law to the state of facts as found, it was the duty of the Court to disregard and reject the proposition of law as presented in the motion if deemed erroneous, and to decide tho case in conformity with the views which it would otherwise entertain. The opinion' of the Court succinctly states the principle which governed it in the decision, viz: “ If a broker Who first procures a purchaser, reports bis offers to his principal without identifying the person from whom they come, he cannot recover commissions in case of a subsequent sale through another broker at the same price, to the same purchaser, unless it appears in evidence that the seller knew this fact, or that notice was given him by the plaintiff before the completion of the contract and payment of commissions to the second broker.” We are of opinion that this was a correct exposition of the law in such a case, and that the judgment of the Court should be affirmed. If there bo but one broker employed, lie can with safety withhold the name of the purchaser until the sale shall have been made. But as [486] the employment of one broker does not preclude the employment of another to procure a purchaser for the same property, it becomes, therefore, the duty of the broker who procures one, and who looks to the security of his commissions, to report the name and offer to his principal, that the latter may be notified in time and thus put upon his guard before he pays the commissions to either. (Decided July 17th, 1866.) Before leaving this case, it may be proper to observe that in cases like this, of submission to the Court without the aid of a jury, more care or precision should be adopted in raising the questions of law for the decision of the Court below, that • upon appeal parties may not lose the benefit of appeal, or this Court be left to gather them from the opinion of the Court below, or the course of the trial there. Judgment affirmed.