
    Haviland v. Price.
    (New York Common Pleas—General Term,
    January, 1894.)
    In an action for commissions on an exchange of property made by brokers between two of their clients, where the defendant does not move to dismiss the complaint, but requests a charge that “in order to recover, the jury must find that the representative of the brokers in the transaction stood impartially between the parties and did not favor the other at the expense of the defendant,” it is too late on appeal to raise the question whether a recovery could be had because the broker “was serving two masters.”
    Where the broker is a mere middleman, not vested with discretion respecting the price and terms of sale, the rule that an agent may not recover from both sides does not apply.
    Defendant placed certain property in the hands of brokers to sell at a certain price. Being unable to do so, they procured one of their clients to make an exchange, and a meeting of .the parties took place at their.'offlce, at which defendant was represented by a lawyer, and the brokers by another person, and an agreement as to terms was made. On the trial of an action for commissions it was stipulated that it was the custom for brokers in New York city 'to charge commissions against both sides in case of an exchange of property where there is no agreement or understanding to the contrary. Held, that .under these circumstances the brokers were entitled to such commissions. ■
    Appeal from a judgment entered on the verdict of a jury at trial term and from an order denying defendant’s motion for a new trial.
    
      A. Walker Otis, for defendant (appellant).
    
      E. J. Myers, for plaintiff (respondent).
   Bookstaver, J.

This action was brought to recover commissions claimed to have been earned by plaintiff’s assignors,. J. Romaine Brown & Co., in effecting the exchange of certain real estate. In May, 1890, defendant was the owner of a house and lot on Perry street for which he asked $15,000, and which he had placed with Brown & Co. for sale at that price. This they were unable to accomplish, and subsequently they notified the defendant that a Mr. McKelvey, one of their clients, had a house and lot on West Fifty-sixth street which could be exchanged at a valuation of $30,000. Afterwards the parties met by appointment at Brown & Co.’s office, where the negotiation resulting in an agreement to exchange properties was conducted. At that interview a Mr. Pressinger, a lawyer and broker, represented the defendant, but nothing was said as to the relation of Brown & Co. to him, although the defendant knew at the time he had placed his property with the firm for sale and that Mr. McKelvey was also a client of that firm. Mr. Cain represented Brown & Co. on that occasion, and endeavored to bring the parties together respecting the price to be paid upon the exchange, by the one increasing his offer and the other reducing his demand, but no concealment of the true relation of the parties was attempted. The defendant did not attempt to repudiate the authority of Cain. All that took place at the interview was submitted to the jury. The defendant did not request the dismissal of the complaint, but, on the other hand, he requested the court to charge “ that in order to recover the jury must find that Mr. Cain, representing J. Romaine Brown & Co. in this transaction, stood impartially between the two parties, and did not favor Mr. McKelvey at the expense of Mr. Price,” which was charged, thus in effect admitting the employment by both parties of the brokers, and only raising the question of impartial dealing or acting in good faith to be determined by the jury, and requesting such determination by the jury.

Having taken his chances with the jury for a favorable verdict, a defendant is precluded from ’ successfully asserting for the first time on appeal that the facts did not warrant their submission to the jury, and that the verdict rendered is without evidence or against the weight of evidence. Bennett v. Levi, 19 N. Y. Supp. 226; Barrett v. R. R. Co., 45 N. Y. 628, 632; Sickles v. Gillies, 45 How. Pr. 95 ; Rowe v. Stevens, 44 id. 10; Caspar v. O'Brien, 47 id. 80.

It is, therefore, too late now to raise the question as to whether or not the plaintiff should be allowed his recovery because he “ was serving two masters.” As a general rule a broker will not be allowed, to recover from both parties, but under the circumstances of this case we do not see why he should not, under Jarvis v. Schaefer, 105 N. Y. 289, and in view of the stipulation in the case that it was the custom among brokers in the city of New York to charge commissions against both sides in a case of exchange of property,, when there is no agreement or understanding to the contrary.”

But the recovery in the case under consideration may be sanctioned on another ground, and that is, the brokers were mere middlemen, not vested with discretion respecting the price and terms on which the sale was to be made ; hence the rule that an agent may not recover from both sides does not apply. Siegel v. Gould, 7 Lans. 177, followed in Balheimer v. Reichardt, 55 How. Pr. 416.

The judgment should, therefore, be affirmed, with costs.

Bisohoff and Pbyob, JJ., concur.

Judgment affirmed, with costs.  