Sherwood v. Lovett

Brown, J.

The facts in this case are substantially as follows:

One Potter, a resident of tbe state of Ohio, was tbe owner of certain real property situated in tbis state. Defendant, Lovett, was bis agent, residing at Dulutb, witb authority to sell tbe same. R. M. Hunter was a real estate agent, residing at Dulutb, and doing business under tbe firm name of J. 0. & R. M. Hunter. Plaintiff was a real estate dealer, also residing at Dulutb. Hunter and plaintiff were familiar witb tbe Potter property and its value, and entered into an arrangement between themselves to obtain an option or executory contract for tbe sale thereof, witb tbe view of a possible subsequent sale to some third person, and to divide equally tbe profits made.

In pursuance of tbe arrangement, Hunter went to defendant, tbe agent of tbe owner of tbe property, and informed him that be (Hunter) bad a prospective purchaser, and asked for terms of sale, and whether defendant would divide bis commission if Hunter effected tbe sale. Defendant named $65,000 as tbe selling price, which was acceptable to Hunter, and defendant agreed to divide witb Hunter tbe commissions to be paid by the owner of tbe property if tbe sale was made. A contract for tbe sale of tbe property was then entered into. Hunter stated to defendant that tbe proposed purchaser did not care to have bis name known for tbe present, and tbe contract was made out in tbe name of “J. C. & R. M. Hunter, Agents, Purchaser.” Tbe contract fully specified tbe terms of sale, and fixed sixty days within which it should be carried out by tbe delivery of tbe deed, abstract, and payment of purchase price. Defendant bad no information at tbis time that Hunter was interested as a purchaser of tbe property.

Tbe contract of sale was extended on two different occasions, and before tbe expiration of tbe last extension Potter, tbe owner of tbe land, died. Subsequent to bis death tbe contract was carried out by tbe executors, and tbe property deeded to Augusta Berg, who in turn *85 executed a mortgage thereon to secure the deferred payments. It was, however, known and understood that plaintiff was the real purchaser, that Hunter was interested therein with him, and the closing of the transaction took this form, so that plaintiff could avoid becoming personally liable upon the mortgage. It was fully understood, both by the executors of the estate and by defendant, their agent, that Hunter and plaintiff were both interested as purchasers some time before the transaction was closed, and it was finally consummated with full knowledge of that fact. Plaintiff and Hunter hoped and expected to make a profit on a resale of the property, but there is no evidence that any such profit was in fact made.

Subsequent to the transaction Hunter assigned to plaintiff his contract with defendant for one-half the commission paid by the Potter estate, and this action was brought to recover thereon. A verdict was returned for plaintiff, and defendant appealed from an order denying his alternative motion for judgment notwithstanding the verdict or a new trial.

1. It is the contention of defendant that Hunter became by the transaction with defendant an agent for the sale of the property, and as such charged with all the duties and obligations incident to that relation, and, having a prior agreement with plaintiff to share in the profits of a resale, which he concealed from defendant, could not enforce the agreement for a division of defendant’s commission, and nothing, therefore, passed by his assignment of the contract to plaintiff ; in other words, that the evidence conclusively shows that Hunter was secretly attempting to obtain a commission or profit from both parties while acting as the agent of each; — citing Webb v. Paxton, 36 Minn. 532 , 32 N. W. 749 , Smitz v. Leopold, 51 Minn. 455 , 53 N. W. 719 , Merriam v. Johnson, 86 Minn. 61 , 90 N. W. 116 , and other similar cases. In this we are unable to concur.

Hunter was not clothed by the defendant, or the owner thereof, with authority to sell the property. After his arrangement with plaintiff, by which they expected to be able to make a resale after purchasing from Potter, Hunter stated to defendant, the agent of the owner, that he had a prospective purchaser, but did not disclose his name. Plaintiff was in fact that person. After discussing the *86 subject, defendant executed to Hunter an enforceable executory contract for the sale of the property, -which after one or two extensions was finally carried out. This clearly was not vesting in Hunter authority to go out upon the market and look up purchasers, nor was he under any obligation to do so. He was vested with no discretion in the premises whatever. He was authorized to complete the particular transaction, and to secure the performance of the executory contract of sale, on the terms there prescribed, but was under no obligations to look for other purchasers, or to make more advantageous terms of sale. His sole adverse intent was in the hope and expectation that a sale might be made under the authority of the contract, or after plaintiff became the owner, which would inure to his benefit. To this extent he was interested as a purchaser. But his hopes were not realized. No profits were made by a resale.

Under such circumstances, it cannot well he held as a matter of law that Hunter violated any duties owed by him to defendant or to Potter, or that he was by the transaction placed in a position of trust or confidence toward them. The fact that he was interested as a purchaser did not deprive him of the right to share in defendant’s commission as agreed upon. The full commission was paid to defendant, and the sale was brought about through the efforts of Hunter, and completed with full knowledge of his interest therein. He therefore earned the agreed compensation. Remple v. Hopkins, 101 Minn. 3 , 111 N. W. 385 ; Selover v. Isle Harbor Land Co., 91 Minn. 451 , 98 N. W. 344 . It follows that the court properly refused defendant’s request for a directed verdict.

2. The trial court submitted the issues to the jury, and permitted them to determine what relation Hunter bore to defendant and Potter, charging them that if he was their agent, and as such was vested with discretionary authority respecting a sale of the property, he would not be entitled to share in defendant’s commission. We have examined the charge of the court, and discover no error therein of which defendant can complain. The court, on the authority of Remple v. Hopkins, supra, would have been justified in directing a verdict for plaintiff. The controlling facts being practically un *87 disputed, Hunter’s right to the agreed division of defendant’s commission is fully sustained by that case.

As this disposes of the case, it becomes unnecessary to consider ■ in detail the various assignments of error.

Order affirmed.