Peterson v. King , 40 S.D. 150 ( 1918 )

WHITING, P. J.

Action to recover compensation which plaintiff claims is clue him from defendants upon an express contract for services in bringing' defendants and a third party together, through which bringing together an exchange of properties was consummated between such parties. Verdict and judgment for plaintiff, and from the judgment and an order denying a new trial defendants have appealed. Two- questions of fact are presented for our consideration.

Appellants contend that, under the undisputed evidence, it appears that respondent was not a mere “middleman,” hut was in fact the agent of appellants, and as such occupied a relation of trust and confidence, under which he was not entitled to> receive compensation from both parties to- the exchange-, unless each of said panties knew that lie was to receive compensation from the other, and -that the evidence shows the othe-r party to the exchange t-o have been- ignorant -of the fact .that • respondent was to receive -compensation from appellants. Appellants raise no question as to the law governing the rights of a “middleman,” nor does respondent a-s to those governing the rights of one who 'occupies a relation of trust toward the parties for whom he acts. Appellants asked and the -court gave an instruction under which, if the ju-ry found respondent to be a “middleman,” he was -entitled to recover. Appellants now insist that there was no evidence up-on which the jury could find respondent to be a “middleman.” If that were true, the instruction they asked for was improper. After a careful examination of the record, we are of the opinion that there was evidence, sufficient to go to the jury, supporting respondent’s- claim that he was a “middleman.” It therefore becomes unnecessary to consider the other issue -of fact raised.

The judgment and order appealed from are affirmed.