Slagle v. Russell

Boyd, C. J., delivered the opinion of the Court. The appellee recovered a judgment against the appellants for commissions on a sale of real estate of which he claims to be the procuring cause. He was a licensed real estate broker in Kent County, and called upon Mr. C. W. Slagle in Baltimore the latter part of December, 1908, or the early pafit of January, 1909, and told him he thought he could find a buyer for the farm held in trust by the appellants. ITe testified that he told Mr. Slagle that if he was able to find a buyer, his commission would be five per cent., and that “his answer was, 'you go ahead and offer it to your prospective buyers and sell it if you can/ and with that understanding after that conversation, I left his office.

Mr. Slagle said they wanted $20,000 for it. Witness said he thought that was a little high but might be obtained, and Slagle said: ‘You make me a proposition for it/ which I afterwards did, his insti’uctions were 'whatever offer you get, submit it to me.’ ” On cross-examination he stated he had written on January 27th, 1909, the following letter: “Deferring to our conversation regarding farm now occupied by Mr. Hudson, and situate near Gales, will you kindly advise me if you care to sell, as I am in communication with one of my customers ‘ who might be interested in this place.” To which he received the following reply, dated January 29th, 1909: “In reply to your favor of the 27th will say we will sell the farm situated on Worton Creek, containing about 516 acres, at the rate of $38 per acre, subject to the tenants’ rights.” He said he had no other written agreement with Mr. Slagle, and did not see him personally or have any other communication, either ⁴²² verbal or written, with the Slagle estate, or its representatives, until the end of June, 1909. Mr. W. H. Oacy of Kent County got a verbal option from Mr. Slagle, for the purchase of the property at $17,000, in June, 1909, and on the 28th of that month obtained an option in writing, at which time he paid $250.00. Shortly afterwards Mr. Baukhages told Mr. Cacy he was authorized by Mrs. Costello to offer him $1,000 advance.

He declined that but finally sold it to her for $23,000, before he got his deed, which is dated September 7th, 1909. It is shown by uncontradicted evidence that the appellants did not know Mrs. Costello in connection with the sale, and Mr. Cacy testified that when he obtained the option he did not know there were such people living as Mrs. Costello and Mr. Baukhages, but the latter afterwards came to him—having been told by Mr. Slagle that he had agreed to sell the farm to Mr. Cacy. He (Mr. Cacy) paid Mr. Baukhages’ commissions on this sale to Mrs. Costello. Mr. Russell contends that he was instrumental in procuring Mr. Cacy as a purchaser and hence is entitled to commissions.

Mr. Slagle testified that he did'not know that Mr. Russell had ever spoken to Mr. Cacy on the subject, that he had heard nothing whatever from him since January, and never thought of him in connection with the sale. He had not given him an exclusive right to sell, and we do not understand it to be contended that he did not act in perfectly good faith. On June 26, 1909, which was after the verbal option was given by Mr. Slagle to Mr. Cacy, Mr. Russell wrote to the estate of Charles W. Slagle as follows: “About one week ago I wrote you about your Gales Wharf Earm. Will you kindly advise me your lowest cash price, or lowest pnce for the whole tract, and at .what figure would you name for the wharf and the farm tilled by Mr. Hudson.

Thanking you for an early reply, I am,” etc. He received the following reply, which is dated in the record July 29, but is admitted to have been written on June 29, 1909, “In reply to your ⁴²³ letter of the 26th, would, say that we have not received the letter within the last week of which yon speak. We would also state that as the whole of Worton Manor Beach Earm is now practically sold we cannot name you a price on any part of it at present.” On July 1st, 1909, Mr. Russell wrote the following letter : “Tours of the 29th at hand. Acting upon our conversation of last spring, together with your letter of several months ago, I submitted your farm to a Mrs. Costello and a Mr. Baukhages of Baltimore, should they be the purchasers to whom you refer, I would expect a commission from the sale, and I write to this effect so that you may not enter into a contract until we clearly understand just what your and my relations are. Of course it is possible that these parties are not considering the purchase, if so, my assumption is inapplicable.” On July 3rd he called up Mr. Slagle by telephone and Mr. Slagle told him that he had sold the farm to Mr. Cacy.

On the same day Mr. Russell wrote a letter addressed to the Estate of Charles W. Slagle in which he referred to the conversation with Mr. C. W. Slagle about the first of January, 1909, and to the letters of January 27th and January 29th. He said in this letter that, “In Jan., 1909, I, at Massey Sta., Kent Co., submitted this farm to W. H. Cacy, of Massey, during April, 1909, in Chestertown I again approached Mr. Cacy about this farm, and about three weeks ago, I again talked with him,” and he claimed commissions on the sale to Mr. Cacy. In his testimony he said he had some business with Mr. Cacy the latter part of January, and he spoke of the farm to him. He told him they were asking $20,000 for it.

He said “he would consider it, and that was all he said.” He saw him again about the first of April, and spoke of it. Cacy said the price was too high, but they talked it over and he told him he thought less than $20,000 would buy it. Then about the last of April he saw him again, and told him he had talked with others, and he thought it was worth the ⁴²⁴ money, and insisted upon his further consideration of it. Cacy said he thought the price was a little high and the buildings needed some repairs, but “Well, he said, I will think it over.” He did not see Oacy after that, but he was trying to sell the property to different parties.

Mr. Eussell admitted that he did not make any new proposition in April—“no more than a repetition of my argmnents. Same thing in interview in latter part of ApriLin Chestertown.” Oacy testified that when he met Eussell about Christmas, 1908, or the first of January, 1909, “Mr, Russell said Worton Manor Farm could be bought, and he said, I will buy it with you, and I think we can make some money on it.” He told him he would go with him to look at it. He was asked: “Q. Did he say anything at that interview about your buying it and his not buying it? A. Ho, sir; not a thing.

His proposal was he buy it with me. Q. Is your mind clear on that ? A. Yes, sir. Q. That he buy it with yoti?

A. Yes.” He said he did not go to see it then, and the next thing that occurred about it was that he met Mr. Russell, he thought in February or March, but was not positive about the date, when “He simply said what about that Worton Manor Beach Farm, you have not been to look at it.’ I said, ‘I will go with you to look at it some time.” That was about the substance of what was said. Witness did not go to look at it then. ‘Well, I saw Mr. Russell again in Chestertown, I think it was in April, and he mentioned the matter, and I 'said, Waters I haven’t the money, and I gave it up.’ At the third interview, Russell said, ‘What about the Worton Manor Farm?’ ‘Well, I said, Waters, I haven’t any money, and you will have to count me out.’ Meanwhile witness had done nothing about the farm, or been to look at it.'” He further testified that some time in June he saw Mr. Perkins (one of the counsel for the plaintiff) on the train and he said if he (Cacy) would buy it he (Perkins) would buy a portion of it, or 50 aeries of the farm. He Went to ⁴²⁵ Baltimore, saw Mr. Slagle, and' got the option the latter part of June. Inasmuch as the appellants relied largely on what they claim to have been error in rejecting the sixth and eighth prayers, we will consider them before talcing up the other questions involved in this case.

The sixth is as follows: “If the jury believe from the evidence that at no time did plaintiff propose to William BE. Oacy that he, said Cacy, should buy defendants’ farm, but that his proposal always was that plaintiff and Cacy should buy it together, then even if the jury further believe that the purchase of defendants’ farm by Cacy. was the direct result of the said proposals of the plaintiff, yet under the pleadings and evidence in the case the plaintiff is not' entitled to recover.” The eighth prayer is: “The defendants pray the Court to instruct the jury that if they find that whenever the plaintiff suggested to Mr. Oacy the purchase of the property in question, it was always with the proposal that he, the plaintiff, and the said Cacy should purchase it together, and at no time with any other proposal, and that plan of purchasing was not known to the defendants, then under the pleadings in the case the plaintiff cannot recover.” The appellee contends that there was not sufficient evidence to support those prayers, and hence they were properly refused, but we think there was unquestionably evidence tending to show that Mr. Russell’s proposition to Mr. Cacy was that they should' buy the property together. In addition to what we have stated above, Mr. Russell admits that he “knew that Cacy was not a farmer, buying for farm purposes, but as a rule invested in farm properties for the purpose of selling.” He further said, “As a matter of fact, I advised Mr. Cacy to buy the farm, thinking it was a good proposition for him to invest in, and urging him, to the extent of telling him, that if he wanted me to, I would go in with him. I did that to strengthen his judgment and opinion as to the value of the farm”-—although he also said in answer to the ques ⁴²⁶ tion, “So jour proposition really was, then, to Mr. Oacy, that you would go in with him and buy this farm?” “Bo, my primary proposition was for him to buy it.

I opened the subject up that way. The second proposition was, if he wanted me to, I would go into it.” Mr. Oacy testified, as stated above, and there can be no doubt that according to his 'evidence, Mr. Bussell’s proposition to him was that they should buy it together, and Mr. Bussell, to some extent, corroborated him. It was, therefore, a question for the jury and those prayers left it to them. What then is the effect of that action, if Mr. Oacy’s theory of what was done is correct?

In Raisin v. Clark, 41 Md. 158 , the appellant was employed by the owner to sell for him a farm in Baltimore County and appellee, seeing the advertisement, called upon the appellant and proposed to exchange a house she owned in the city for the farm, which exchange was effected. The owner paid the ajDpellant the usual commissions, and he sued the appellee to recover like commissions from her. This Court affirmed the judgment denying his right to recover, and, in the course of the opinion, Judge Miller said: “It is a general rule that a party cannot in any agency of this kind act as agent or broker for both vendor and vendee in respect to the same transaction, because in such case there is a necessary conflict between his interest and his duty. _ The vendor in the employment of an agent to sell his property bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit. “It is a confidence necessarily reposed' in the agent, that he will act with a sole regard to the interest of the principal as far as he lawfully may. The seller of an estate isi presumed to be desirous of selling it at as high a price as can fairly be obtained for it, and the purchaser is equally presumed to desire to purchase it for as low a price as he may.

The interests of the two are in conflict * * * Hence the law will not permit an agent of the vendor whilst that employment continues, to assume'the essentially inconsistent and ⁴²⁷ repugnant relation of agent for the purchaser.” Again he said: “It is perhaps possible for the same agent to serve both parties to such a transaction honestly and faithfully, but it is very difficult to do so, and the temptation to do otherwise is so strong that the law has wisely interposed a positive prohibition to every such attempt.” In Blake v. Stump, 72 Md. 172 , this Court said: “The principle asserted by the eighth prayer of the defendant is that a broker cannot act for both seller and purchaser without ■ the full knowledge and consent of each, because their interests are in conflict. That is undeniably the law, and has been maintained by this Court, most positively in Schwartze v. Yearly, 31 Md. 271 , and Raisin v. Clark, 41 Md. 159 .” The eighth prayer spoken of in that opinion was to the effect, that if the jury believed that the plaintiffs were employed by the defendant to effect the sale in question, and that prior to the commencement of the negotiations the purchaser had employed them to procure the property, and the plaintiff in pursuance of that employment commenced to treat with the defendant for the purchase of the property; or if they believed that at any time whilst the plaintiffs were in the employ of the defendants they were in respect to the purchase and sale in any way in the employ or acting as agent of or in the interest of the purchaser, then the plaintiffs were not entitled to recover. That was an action for the recovery of commissions on the theory that the plaintiffs’ introduction of the purchaser had been the procuring cause of the sale, and the principle involved in that prayer was very analogous to that in these now under consideration. Eor if a broker employed by the owner cannot be agent of the purchaser, surely he cannot be the