Weinhouse v. Cronin , 68 Conn. 250 ( 1896 )

Andrews, C. J.

The finding that-there was an implied contract to pay a commission, shows that there was no express one. An implied contract respecting any matter can exist only where there is no express one. 1 Chitty on Contracts (11th Amer. Ed.), 89; King v. Kilbride, 58 Conn. 109, Brown v. Fales, 139 Mass. 21. What is often termed an implied contract, though it is more properly denominated a quasi contract, is matter of law. 1 Swift’s Dig. 175. Such a contract rests merely on construction of law. It is one which the law, from the existence of facts, presumes the party lias made. Brackett v. Norton, 4 Conn. 517, 524. A true “implied contract” on the other hand, is one which may be inferred from the conduct of the parties, though not expressed in words. In the case at bar, the finding is so drawn as to indicate that the court was of opinion that from the facts proved the law implied a contract, or quasi contract. If the facts which the court finds to exist, are such that the law presumes from them that the defendant had made the contract which the plaintiff has alleged in the complaint, then the judgment is correct; but if otherwise, there is error.

There are two conditions, upon either of which, if shown to exist, the law would imply a contract by the defendant to pay a commission to the plaintiff. If the defendant has so conducted that the plaintiff, acting fairly, had the honest belief that a lawful request had been made to him by the defendant to render services as a broker in the sale of the defendant’s said real estate, and if the plaintiff acting on such request rendered such services, then the law would imply a promise by the defendant to pay to the plaintiff what the services were reasonably worth. Or, if the plaintiff without having been requested so to do, rendered services as a broker in the sale of the defendant’s real estate, under circumstances indicating that he expected to be paid therefor, and the defendant knowing such circumstances availed himself of the benefit of those services, then the law would imply a promise by the defendant to pay to the plaintiff what those services were reasonably worth.

■ The facts from which the contract of the defendant to pay a commission to the plaintiff, is to be inferred, are brief • The plaintiff is a real estate broker living in New Haven. The defendant is a Catholic priest living in Wallingford. He owned certain real estate situated in New Haven which he wished to sell. He had put up a sign on it, advertising it for sale; and so far as appears, in his own name, as though lie desired to avoid the expense of a broker. The plaintiff knew that this property was for sale, and had certain customers who wished to buy it. Three interviews between the plaintiff and the defendant in respect to this property are mentioned. The substance of the first one is this: The plaintiff called on the defendant at his home in Wallingford and said to him, “ I have a customer who desires to buy your property in New Haven. For what price will you sell it?” The defendant named the price. A customer is a person with whom a business house, or a business man, has regular or repeated dealings. The plaintiff being a real estate broker, his customer would be one for whom he had acted in the buying or selling of real estate. Putting then the meaning of the words in the place of the words used, and what the plaintiff said to the defendant at this interview means: “ I have a man for whom I am acting who desires to buy your property in New Haven. For what price will you sell it ? ” The fact that the plaintiff led the defendant to believe that he was the agent of a would-l3e-purchaser, excludes the possibility of his being the agent of the defendant. The law will not permit any one to be the agent of the buyer and the seller at the same time, unless there is knowledge by both and an assent thereto. Bollman v. Loomis, 41 Conn. 581.

- The second interview sheds no light at all on the relation of these parties.

■ The third one is this: The plaintiff took the defendant to the house of one Herz and introduced them, saying: “Mr. Herz, this is Father Cronin ; I am trying to sell his property.” And to Father Cronin, “ This is my customer.” The price of the property was then talked over. No sale was then made. Afterwards the defendant called on Herz, and without the knowledge of the plaintiff effected a sale of the property to him.

Putting the meaning of the word customer in the place of that word, and the third interview becomes: “Mr. Herz, this is Father Cronin. I am trying to sell his property. Father Cronin, this is the party to whom I alluded at our interview at Wallingford. This is the man for whom I am acting.” Reading these interviews in the meaning which the parties, acting fairly, must have attached to the words, it is certain that the plaintiff could not rightfully, at the first interview, have believed he was requested by Father Cronin to act as broker for him. He was acting at that interview as the broker for the intending purchaser. He could not honestly have supposed he was requested to betray his own customer. At the third interview words were used from which, being unchallenged by the defendant, it is argued the plaintiff might fairly suppose that Father Cronin assented to his acting as broker to sell the property. Assume this to be true; but after that interview the plaintiff rendered no services as broker, and so did nothing for which he might justly charge commission. It may perhaps be urged, as it is, that the bringing Father Cronin to the house of Mr. Herz and introducing them to each other, was services as a broker of which the defendant availed himself. Let this be taken to be true; but no contract to pay for that service would be implied against Father Cronin, unless the service was rendered under circumstances such as fairly to give notice to Father Cronin that the plaintiff was expecting pay therefor from him. Now a declaration by the plaintiff at that very time, that Mr. Herz was his customer, and so the party for whom he was acting, could not be regarded as giving any such notice to the defendant; but exactly the contrary. The law never implies a contract except where reason and justice dictate it. And it must be reason and justice which affects both the parties.

Wé have thus gone over the facts in the case somewhat carefully, and are not able to find anything from which the law will imply a contract by the defendant to pay the commission charged by the plaintiff. In reason and justice the plaintiff is not entitled to demand a commission, nor does reason and justice require the defendant to pay it.

There is error, and the judgment is reversed.

. In this opinion the other judges concurred.