Atkinson v. . Pack

The question whether the plaintiffs were the agents of both Harding and defendant, or of Harding alone, or whether they were middlemen whose part was performed when the proposed seller and purchaser were brought together, is not a very important, nor, indeed, in this case a necessary one. The authorities cited by the learned counsel for the defendant abundantly sustain the plain principle that one cannot, without the knowledge and consent of both parties, act as agent both for the vendor and purchaser, because the interests he attempts to represent are adverse to each other. If he were simply a middleman whose business was to bring parties together so that they might make their own bargain there would be no valid reason why he might not stipulate for commissions from each party.

In this case it is sure that the plaintiffs were real estate (604) brokers in the city of Asheville, and it will once be understood that their business was the negotiating of sales and purchases of real estate between other parties upon commission. In the course of their business the plaintiffs negotiated with the defendants for the sale of the property named to one Harding at a price agreed to be paid on a day certain, the plaintiffs' commissions upon said sale to be paid by the purchaser, Harding.

Every detail of the transaction seems to have been arranged and upon the day set for the completion of the sale the plaintiffs, during business hours, notified the defendant that Harding was ready and willing to comply with the terms of sale; whereupon, without giving any valid reason therefor, defendant declined to fulfill his contract.

This action is brought not to recover commissions out of defendant, for it was expressly stipulated that defendant was to receive $25,000 net for the land and that plaintiffs must look to Harding for their commissions. But the action is brought to recover damages for the nonperformance of a contract, the evidence of which was in writing, made with plaintiffs that defendant would sell the said land to Harding at the price stated. The defendant seems to admit that there was a breach of contract on his part with some one, but he contends that it was with Harding, and that the latter is the party responsible to plaintiffs for their commissions. But there were plainly two contracts made by plaintiffs, the one with defendant, the effect of which was that plaintiffs would provide a purchaser, of the land at the agreed price, commissions to be paid by the purchaser, the other with the purchaser, that he would pay the plaintiffs' commissions upon the conclusion of the sale.

If through the negotiation of plaintiffs the parties had been brought together and had concluded the trade between them, the plaintiffs would have been entitled to their commissions from Harding, the (605) purchaser, according to the terms of their contract. But this action is for damages; the gravamen of the charge is that defendant committed the wrong and injury upon plaintiffs by a refusal, without cause, to comply with his contract with plaintiffs to sell the land to plaintiffs' principal, with the distinct understanding that plaintiffs were to be compensated by the purchaser. The natural effect and consequence of this refusal by defendant was the loss by plaintiffs of their commissions and in arriving at the measure of damages, his Honor (trying the case by consent without a jury) considered the amount of commissions agreed upon.

The case of Cavender v. Waddingham, 2 Mo., 551, is very much like our own. There the plaintiffs were employed by defendant to purchase for him a certain lot of land, but the plaintiffs' commissions were to be paid by the vendors; plaintiffs made the negotiation, procured the deed to be made to defendant according to the contract and tendered the same, demanding the purchase-money for the vendors; defendants refused to comply with his contract, and plaintiffs sued him to recover damages for the loss of their commissions by reason of the refusal by defendant to comply with the contract. It was held that plaintiffs had shown good cause of action against defendant.

There having been, then, a contract between plaintiffs and defendant, and defendant having refused to perform his part of it without fault of plaintiffs, they are entitled to recover as damages such sum as will compensate them for the loss sustained by the breach of contract by defendant. The measure of this damages is easily ascertained — the amount of commissions which plaintiffs would have been entitled to receive from the purchaser if the contract had been carried out.

No error.

Cited: Abbott v. Hunt, 129 N.C. 406; Lamb v. Baxter, 130 N.C. 68;Swindell v. Latham, 145 N.C. 151.

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