Hermann

Plaintiff recovered a judgment against defendant for the sum of $1,500, commission claimed to have been earned under a written contract of employment to find a purchaser for and negotiate a sale and transfer of certain real property for defendant. This is an appeal from the order denying defendant’s motion for a new trial.

Defendant in his answer admitted that he executed a written agreement in favor of the plaintiff, by which the defendant agreed to pay to the plaintiff a commission of $1,500, “provided that the said plaintiff should consummate a sale of certain property therein named and set forth,” upon the terms in said writing set forth, but denied performance of the contract upon the part of plaintiff, and any indebtedness from defendant to plaintiff under said contract.

Defendant attacks the sufficiency of the evidence to support the findings in favor of plaintiff.

The first contention of appellant involves the construction of the contract under which plaintiff claims that it has earned the commission sued for.

The contract relied on is in two instruments executed by defendant to plaintiff. By the first—which by its terms was to expire in ten days from June 13, 1905,…

I concur in the judgment, but in my opinion the exchange of the property and the consummation of such exchange was a condition precedent, upon which the right to the commission depended. It was not proven that there was any exchange of the properties, nor was the exchange consummated. The contract signed by Miley was not binding upon Butler.

As to what is said in the last paragraph of the opinion, I think a broker who is acting as agent for one of the parties and receiving a commission from such party, should not be allowed to collect a commission from the other party for the same services unless it clearly appears that the broker fully and fairly stated all the facts to such other party. The law does not countenance double dealing; and there is a strong presumption in such case that one cannot at the same time serve two masters; but of course if the two masters both know all the facts, and, knowing such facts, each agrees to pay a certain sum, there is nothing unfair about such contract. In this case the defendant must have been fully informed as to all the facts, and as to the amount of commission that the plaintiff was to be paid by Butler before plaintiff can recover against…