Levy v. Gross

1. BROKERS — Right to Commission — Dual Agency. A broker, acting for both, parties in effecting a deal, can recover compensation from neither, unless his double employment was known and assented to by both parties to the transaction. 2. APPEAL AND ERROR — Ground for Reversal — Instructions—Issues. An instruction upon a material issue, not raised by the pleadings, is reversible error. (Syllabus by Collier, C.)

Error from District Court, Oklahoma County; W. 11. Taylor, Judge. Action by Sam Levy and another, doing business as Levy Bros., against F. A. Gross. ■ Judgment for defendant, and plaintiffs bring error. This is ■ an action, instituted by Sam Levy. and Leon Levy, doing business as Levy Bros., plaintiffs in error, hereinafter called plaintiffs, against F. A. Gross, defendant in error, hereinafter called defendant, upon a written obligation for $1,000 for the services of plaintiffs in securing a lease to defendant from A. M. Barber of certain lots in Oklahoma City, named in said lease, and specifying that said $1,000 was to be deducted from the amount of cash that was deposited by defendant with said Barber to secure the performance of tire covenants of the lease on the part of defendant. The evidence in the case, so far as we deem necessary to consider the same, is that plaintiffs are real estate agents, doing business in Oklahoma City, and were employed to secure for said defendant the lease of said lots named in said writing. There were admissions by plaintiffs, to the effect that they received from said Barber the sum of $1,000 as a commission for securing said lease, on the part of said Barber, and that plaintiffs did not inform defendant they had, or were to receive, said commission from said Barber for negotiating said deal, That the plaintiffs received said commission from Barber for making said lease by and between the defendant and said Barber was not pleaded in any manner by defendant. The court, among other istructions, instructed the jury as follows: “(5) You are instructed that under the laws of the state of Oklahoma a real estate agent cannot represent both parties to a transaction and cannot collect commission from both parties to the transaction, unless he so acts with the knowledge and consent of both parties, and if in this case you believe from the evidence by a preponderance thereof that the defendant F. A. Gross, did not know, at the time he signed the instrument or obligation sued on, that the plaintiffs, Levy Bros., were to receive, or had received, a commission from one Barber for procuring the contracts with the defendant, then and in that event your verdict should be for the defendant.” Plaintiffs duly excepted to the giving of said instruction. The jury found in favor of defendant. Plaintiffs, within the time required by law, filed a motion for new trial, which motion was overruled, and judgment entered in accordance with the finding of the jury. From this judgment this appeal is prosecuted.