
    Walter A. King vs. Joseph Messamiry
    No. 84834
    December 11, 1931.
   BLODGETT, P. J.

Heard without the intervention of a jury.

Action to recover a commission as a broker for the sale of real estate.

Defendant was owner of a farm in Dodgeville, Massachusetts.

Plaintiff testified that he had in February, 1930, an exclusive agency for the sale of said property, which expired; that subsequently one Delude approached him, seeking a trade of his (Delude’s) property for a farm; that having the farm of defendant in mind, he told defendant of the property of Delude, and that at that time defendant promised to pay him a commission if the exchange was made satisfactory to him (defendant). This was on August 25, 1930. The exchange was consummated but not through plaintiff, September 24, 1930.

Any subsequent promise to pay a commission was denied by defendant.

In September, 1930, plaintiff brought action in the Tenth District Court of Pawtucket against Delude and recovered judgment for $345, which judgment has been paid in full.

In September, 1930, plaintiff brought action in said Court against Messa-miry and the action was non-suited.

Defendant testified he was shown the Delude property by plaintiff but denies the existence of plaintiff’s agency because his written contract had expired, and that in an interview with plaintiff he informed plaintiff that one Loiselle was his agent for the sale of defendant’s property.

Loiselle testified he had the agency for such sale and that he called the property to the attention of plaintiff.

Plaintiff must claim to be in tbe position of a “middleman” to recover from both parties.

In tbe ease of Lynch vs. Fallon, 11 R. I. 311, tbe matter of a broker acting as a “middleman” is discussed by Chief Justice Durfee:

“Tbe general rule is, that tbougb a person may be entitled to pay from both parties to a sale or exchange where be acts as a middleman to bring them together; Rupp vs. Samson et al., 16 Gray 398; Siegel vs. Gould, 7 Lans. 177; be cannot be allowed to serve as an agent or broker for both, because in such case there is a necessary conflict between bis interest and duty, and be is exposed to a temptation to sacrifice tbe interests of one or both of bis principals to secure bis double commissions. As agent for tbe vendor, bis duty is to sell at the highest price; as agent for tbe ven-dee, bis duty is to buy for tbe lowest; and even if tbe parties bargain for themselves,. they are entitled to tbe benefit of tbe skill, knowledge and advice of tbe agent, and at tbe same time, to communicate with him without tbe slightest fear of betrayal, so that it is hardly possible for him to 'be true to tbe one without being false to the other. The claim to charge commissions to both parties is so unreasonable that it cannot be justified by any custom or usage.”

A number of cases are then cited. In this opinion it was also held that plaintiff could not recover even if defendant promised him a commission.

On tbe other band, it has been held in Gross vs. Tillinghast, 35 R. I. 298, that upon tbe issue as to whether tbe efforts of tbe plaintiff led to tbe sale, evidence offered by defendant that be bad been assisted in the sale by a third person and -had paid the latter for his services was immaterial. In this case, however, the Court says: (p. 306)

“It seems to us that tbe testimony greatly preponderates in favor of tbe plaintiffs.”

All these cases, it will be found, depend upon tbe testimony in each particular case and tbe decision must be founded on tbe testimony.

In tbe present case King (plaintiff) bad, some time before tbe actual change of properties occurred, an exclusive right to sell for thirty days. No sale was made in that period and tbe right expired.

Plaintiff testifies that on August 25, 1930, one Delude came to him and wanted to trade tenement property held by him for a farm. Plaintiff naturally had the farm property of defendant in mind and knew that defendant wished to sell same. Pie further testifies that he took Delude to the property of defendant and introduced him to defendant. At that time his agency for sale of defendant’s property had expired and he had no agency.

Plaintiff, however, testifies that defendant orally agreed to pay him a commission for a sale if an exchange of properties were consummated.

Defendant denies having made this second contract with plaintiff and says that one Loiselle, a real estate agent, bad been given by him tbe sale of bis (defendant’s) farm and that Loiselle arranged tbe exchange of properties. Tbe tenement property of Delude was exchanged for tbe farm of defendant September 4, 1930. In this actual exchange the plaintiff bad no band.

Tbe only witnesses to tbe agreement were plaintiff and defendant. It was not reduced to writing as was the first agreement.

King subsequently collected against Delude a judgment for bis commission and in this action attempts to obtain a judgment against defendant.

Tbe Court is of tbe opinion that' plaintiff has failed to prove a second contract with defendant by any preponderance of evidence, and that to prove he acted as a middleman in the transaction he should show the consent of both parties.

For plaintiff: Julius Ousley.

For defendant: Joseph T. Witherow.

Decision for defendant.  