Schwartze v. Yearly

Robtnson, J., delivered the opinion of the Court. This suit was brought to recover for services rendered as a real estate broker, in the sale of certain property belonging to the appellant. One of the questions at issue upon the trial below was the revocation of the plaintiff’s agency, prior to the commencement of negotiations, which resulted in the sale of the property. There was an apparent contradiction between what the appellant said in her examination in chief, and on her cross-examination, as to whether she authorized Mr. Ditty to take the property out of the hands of the appellee, or to get the plat only. At the close of a long cross-examination, the counsel for the appellee asked the following questions: “ Then the sum and substance of the whole matter is, that you only sent Mr. Ditty to get the plat from Mr. Yearly?” To this the witness replied: “Yes, sir. I sent him to get the plat,, and take' it out of the hands of Mr. Yearly, and do> the best he could with it, as it had been in Mr. Yearly’s hands for two years,, and he had done nothing with it.” Now this answer, it is evident, was- liable to> be- misunderstood, or susceptible of two constructions; The “ Yes, sir,” might he taken as assent to the affirmative of the whole question, whilst the rest of the' answer might be construed as meaning both the plat and property, which she directed Mr. Ditty to take out of the hands of the witness. Under these circumstances, it was the privilege of the counsel to ask the witness to explain what she meant, or to state what she authorized Mr. Ditty to do. This was due to the witness, in order that she might state more explicitly what she had said to Ditty, and eminently proper, in order that the jury might understand the true import of her testimony. [276] We are not to be understood, however, as interfering in the least with that discretion which ordinarily rests with the Court in arresting a cross-examination unnecessarily protracted, or in refusing to permit the same question to be put over and over again to the witness. But in this case, in view of the uncertain and ambigu'ous response of the witness, and its just liability to be misunderstood by the jury, we think the Court erred in refusing to allow the counsel to ask what the witness authorized Mr. Ditty to do. In no just sense could it be termed a leading question, which suggested the answer desired; nor did it embody a material fact, which admitted of an answer by a simple negative or affirmative. The defendant then offered to prove by Mr. Ditty that .he told the appellee, he, the witness, was authorized to withdraw the property from his hands, and revoke the ■agency. This evidence was clearly admissible, and the Court had no right to exclude it, upon the assumption that the answer might contradict the testimony of the appellant. In her examination in chief, she certainly had testified that Ditty was authorized to withdraw the property, and take fit out of the hands of Yearly. If there were anything ■upon her cross-examination in contradiction of this statement, it was a matter to be left to the jury. The recalling of a witness, after the examination is closed, is a matter resting solely in the discretion of the Court, from the exercise of which no appeal will lie. The fourth bill of exceptions is not therefore before us for review. This brings us to the law of the case. The first prayer of the defendant was certainly objectionable. The connection in which the word service is used makes its meaning liable to a misapprehension, and well calculated to mislead- the jury. If it were intended [277] to convey the idea that the jury must believe that the sale was beneficial to the appellant, or that the sendees of the broker were of value to her, then it is obviously wrong. If the appellee fully discharged his duty, and performed all he undertook to do, he was entitled to recover, and that too without regard to whether his services were in fact beneficial, or of value to the appellant. The second prayer was also properly rejected. It is a mistake to suppose that a party can revoke the agency in all eases and under all circumstances, prior to the commencement of the negotiations. If the broker introduces a purchaser, and such introduction is the foundation upon which the negotiations are begun and conducted, and the sale made, the agent will be entitled to his commissions. Keener vs. Harrod & Brooke, 2 Md., 196. With this qualification, we see no objection to the prayer. If the agency had been revoked before the appellee became entitled to compensation, under the rule of law as above stated, and the property placed by the appellant in the hands of Mr. Ditty, and he had employed the appellee to assist him in the sale, then of course the defendant was not liable. The Court committed no error in rejecting the third prayer. The plaintiff’s right to recover did not depend upon the natural and probable “ effect,” which notices sot up on the premises might have upon the mind of the purchaser. The jury were properly spared the consideration of this rather difficult and uncertain inquiry. The proposition of law, which the fourth prayer was intended to assert, is too broadly stated. The law, it is true, exacts of the agent an honest and faithful performance of his duty, but it does not oblige him to misrepresent or to conceal the truth. And if a statement thus fairly made operates to defeat the sale, it cannot he said that he has acted in bad faith towards his principal. The sixth prayer is liable to the same objection. An agent, as a general rule, will not be permitted to act for [278] both sides. It is a difficult matter to serve two masters, and the law will not permit an agent to assume relations so essentially inconsistent and repugnant to each other. But this prayer does not restrict the finding of the supposed bad faith to the time during which the appellee was in the employ of the appellant. It says “at any time during the negotiations.” (Decided 2d July, 1869.) The seventh prayer was also properly refused, for the reasons assigned in the consideration of the second prayer. To the latter part of the prayer, we see no objection. If there were a special contract, by which the appellee was not to receive any compensation, unless the property was sold at a stated price, he was not entitled to recover, unless the property was sold at that price, or unless he introduced a purchaser who was willing to buy, and was prevented from making the sale by the fault of the defendant. The eighth prayer was defective, because it denied the plaintiff’s right to recover, unless he made the sale at the specified price, although he may have introduced a purchaser, willing to buy, and was prevented from making the sale by the fault of the defendant. Being of opinion that the rulings of the Court were erroneous in the second and third bill of exceptions, the judgment must be reversed, and a procedendo awarded. Judgment reversed, and procedendo awarded.