
    No. 562
    COLLEY v. SAMPSON, et.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1497.
    Decided Feb. 18, 1927.
    54. AGENCY — 997. Real Estate — In an action to collect a real estate commission, where plaintiff’s evidence shows a double agency, it is incumbent upon plaintiff to prove that double agency was fully disclosed to defendants and that both parties to contract consented to and approved double agency.
    923. PLEADINGS — 396. Directed Verdicts — Court may direct for defendant where evidence shows double agency contract with failure of notice, even though double agency issue is not raised in pleadings.
    First Publication of this Opinion
    Attorneys — Arnold, Wright & Harlor for Colley, McLeskey & Grabeil for Sampson, et; all of Columbus.
   ALLREAD, J.

This was an action to collect a commission for the sale of real estate. The evidence shows that plaintiff was acting for both parties. The Common Pleas Court directed a verdict in favor of the defendant on the ground that it was incumbent upon the plaintiff to prove that such double agency was fully disclosed to the defendants and that both parties to the contract consented to1 and approved the double agency contract. The Court of Appeals affirmed the Common Pleas and held as follows:

1. “The double agency of a real estate broker who assumes to act for both parties to an exchange of land, involves, prima facie, inconsistent duties; and he cannot recover compensation from either party, even upon an express promise, until it is clearly shown that each principal had full notice of all the circumstances connected with his employment by the other, and had assented to the double employment.” Bell v. McConnell, 37 OS. 306.

2. It was urged that no issue as to the validity of the double agency contract was tendered in the pleadings but we think such pleadings were not necessary where the double agency was disclosed in the plaintiff’s own evidence. The case would be similar to the issue of contributory negligence. Glass v. Heffron Co., 86 OS. 70, Coal Co. v. McFadden, 90 OS. 183.

Judgment affirmed.

(Ferneding and Kunkle, JJ., concur).  