Charles R. McCormack & Co. v. Keeveny

HOUGH, Circuit Judge (after stating the facts as above). At the last trial Keeveny gavp evidence tending to prove that he had produced in the person of Dougherty, an American citizen who was ready, willing and able to pay defendant’s price of $460,000, for the motor [300] ship City of St. Helens, and the jury so found. The foregoing would dispose of this writ, but for a point now first advanced in this court. Dougherty was admittedly a member of the firm of Whitney & Co., which firm, by an arrangement with Keeveny, was to get $10,000 out of the latter’s commissions. The fact appears to be that Keeveny procured the assistance of Whitney & Co. in his quest for a purchased, and they charged him for the service, but that such charge was to be made was plainly well known to McCormack before Dougherty was offered, and no objection thereto was ever .made. It is now said that this transaction made Whitney & Co., and therefore Dougherty, as much brokers for 'McCormack as was Keeveny; wherefore, when Keeveny produced Dougherty as the purchaser, the latter, by reason of his partnership in Whitney & Co., was prevented by law from qualifying as such. When plaintiff rested, and again at the close of evidence, defendant moved for dismissal or direction on the ground that— “When defendant found that his purchaser was his own broker, he was entitled to repudiate or refuse to carry out any negotiations on any prior offer which had been made.” This motion was denied over due exception and objection. The defense cannot prevail for several reasons. First. Defendant never pleaded that Whitney & Co. were their brokers in whole or part. Keeveny’s employment, and the production of any able, ready, and willing purchaser were fully denied; but we fail to discover any plea which said or suggested that Whitney & Co. had employment, express or implied, from McCormack. Second. A broker may employ subagents or associate brokers, to Whom he is pecuniarily responsible, and recover for what they accomplish, if good faith is present. Canadian Improvement Co. v. Cooper, 161 Fed. 279, 88 C. C. A. 325. Third. Defendants did .not prove that in respect of the Dougherty sale (as distinguished from the earlier attempt to sell to a French-controlled corporation) Whitney & Co., or any member of that firm, had any relation to defendant or Keeveny, other than that of a purchaser, with whom Keeveny had agreed to split his commission. This, if done honestly, is lawful, even though the splitting be not disclosed to the principal. Hobart v. Sherburne, 66 Minn. 171, 68 N. W. 841, and other cases cited; 9 Corp. Jur. 571. In the present instance all was known to defendant below, and (disregarding all defects of pleading) we discover in the evidence nothing to cause even suspicion of wrong in act or intent Judgment affirmed, with costs.