
    Carter v. Leininger et al.
    (Decided January 14, 1935.)
    
      Mr. Charles E. Vance and Mr. James H. Cleveland, for plaintiff in error.
    
      
      Mr. Eugene Adler, for defendants in error.
   Hamilton, P. J.

R. 0. Leininger and P. C. Kent, real estate agents and brokers, brought suit against Myrtle I. Carter, seeking to recover a real estate commission.

At the trial the jury was waived, and the case submitted to the court. As a result of the trial the court rendered judgment for Leininger and Kent against Mrs. Carter. Mrs. Carter prosecutes error to this court.

There are several assignments of error claimed by plaintiff in error, but we only consider one of any importance. That question is whether the record discloses that Mrs. Carter had knowledge of the dual agency by which Leininger and Kent represented not only plaintiff in error, but also the purchaser whom they had secured and with whom plaintiff in error was to exchange property, which dual agency was not disclosed to or acquiesced in by Mrs. Carter. The promise of Mrs. Carter to pay a commission to defendants in error is an instrument in writing, of which the following is a copy:

“May 28/31.
“I hereby agree to pay and acknowledge the employment of R. C. Leininger and P. C. Kent as agents in securing an exchange of my real estate at 3719 Dogwood Lane, Kennedy Hts, as per contract of even date herewith, a commission of $1320.00 for their services rendered in said transaction.
“Myrtle Carter.”

This agreement to pay the commission was executed simultaneously with a contract between Carter and one Wissel for the exchange of their properties. The contract of exchange was between Mrs. Carter and Mr. Wissel, both of whom signed the contract for the exchange of their properties. Afterwards, Wissel failed and refused to carry out the contract. The record discloses the following in the cross-examination of Leininger:

“Q. Mr. Leininger, you both showed the property to Mr. Wissel?
“A. That’s right.
“Q. Was Mr. Wissel at that time a real estate broker?
“A. I think he was, yes.
“Q. You had already secured his agreement to be represented by you in this ease?
“A. You mean an agency agreement?
“Q. Well, the same as with Mrs. Carter; you had already agreed with Mr. Wissel and he had agreed with you that you would represent him in this matter?
“A. Yes, we were representing him, yes.”

The plaintiffs below, Leininger and Kent, admitted that at the time they negotiated with Mrs. Carter for the exchange of her property with Mr. Wissel they represented Wissel. The dual agency is admitted and proved. It therefore became the duty of the plaintiffs below, defendants in error in this court, to prove that Mrs. Carter knew of and assented to this double employment. The rule is that where the employment of a broker by either party is not disclosed or assented to by the other party, the broker cannot recover against either. Bell v. McConnell, 37 Ohio St., 396, 41 Am. Rep., 528. In the case of Lass v. Meinhart, 15 Ohio Law Abs., 272, this court said:

“It is the well settled law of this state that no commission can be recovered by a real estate agent who represents both parties to the transaction, unless the party to be charged is fully aware of the dual agency and that the agent is recovering [receiving] compensation from both parties.”

“The evidence tending to show knowledge of the dual agency on the part of the plaintiff in error is confined to the testimony of the agent. The dual agency being admitted, the burden of showing knowledge rested squarely upon the defendant in error.”

Not only did the plaintiffs below, in the instant case, fail to show knowledge and assent of Mrs. Carter to the dual agency, but the evidence offered by Mrs. Carter is directly to the effect that she did not know of the dual agency. No evidence was offered to refute her testimony on this point.

At the close of the plaintiffs’ evidence, and at the close of all the evidence, the defendant below, Mrs. Carter, moved for verdict and judgment, which the court refused. This was error. The court should have granted the motion. There was no evidence tending to show that Mrs. Carter knew of the dual agency or had assented to any double employment. The burden being on the plaintiffs to show knowledge and acquiescence on the part of Mrs. Carter to the double employment, and there being no evidence tending to show any such knowledge or assent, the judgment will be reversed and judgment entered here in favor of the plaintiff in error.

Judgment reversed.

Ross, J., concurs.  