#### Tasse, Appellant, vs. Kindt, Respondent.

*November 19,*1910

February *21, 1911.*

*Real-estate brolcers: Middlemen: Commissions from both 'parties.*

*A*broker wbo undertakes merely to procure a purchaser for land at a price fixed by tbe seller is in reality only a middleman and is entitled to tbe agreed commission for sucb service even though, by an agreement unknown to tbe seller, be is also to receive a commission from tbe purchaser. Siebecker, X, dissents.

Appeal from a judgment of the circuit court for Milwaukee county: W. J. TueNeb, Circuit Judge.

*Reversed.*

Tbis action was brought to recover a commission of $400 for services rendered by plaintiff in procuring for tbe defendant a purchaser of certain real estate owned by tbe defendant. Tbe defendant denied generally tbe allegations of tbe complaint. Tbe action was here on a former appeal. 125 Wis. 631, 104 N. W. 703. Tbe case was again tried in tbe court below and tbe following verdict returned:

“(1) Was it agreed between tbe plaintiff and defendant on or about August 15, 1899, tbat if a purchaser of the defend*116ant’s eleven acres should be procured by the plaintiff at the highest price obtainable and satisfactory to said defendant, that the defendant would pay the plaintiff two per cent, commission upon the amount obtained? A. Yes.

“(2) If you answer ‘Yes’ to question No. 1, then answer: Was such agreement modified on or about August 20, 1902, by the defendant fixing the price at which the plaintiff should offer said property, being a tract of ten acres, at $2,000 per acre ? *A.*Yes.

“(3) Was said eleven acres sold by defendant to Read and Neacy as' an entire piece, and at the uniform price of about $1,909.09 per acre ? *A.*Yes.

“(4) Did said plaintiff procure Read and Neacy as purchasers for ten acres of said property ready, willing, and able to purchase said ten acres at $2,000 per acre ? *A.*Yes.

“(5) Did the plaintiff, prior to August 20, 1902, accept employment at compensation from T. *J.*Neacy and Walter Read to purchase the property mentioned in the complaint from the defendant for them ? A. Yes.

“(6) If you answer question No. 5 ‘Yes,’ then answer: Did the plaintiff inform the defendant that he had an agreement with Read and Neacy to receive a commission from them for negotiating the sale with the defendant ? A. No.

“(I) If you answer ‘Yes’ to question No. 5, did such em-. ployment continue until aboiit September 10, 1902 ? A. No.

“(8) Was the plaintiff in the employ of both Read and Neacy and the defendant at the time he was endeavoring to effect a purchase and sale of the property ? A. No.

“(9) If the court shall be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages ? A. To be decided by the court.”

Both parties moved for judgment on the verdict. The motion of the defendant for judgment on the verdict also included a motion that the answer of the jury to the first question of the special verdict be changed from Yes to No; that the answer of the jury to the second question be changed from Yes to No; that the answer of the jury to the fourth question be changed from Yes to No; that the answer of the jury to the seventh question be changed from No to Yes; and that *117"the answer of tbe jury to tbe eig'btb question be changed from No to Yes. On sucb motion tbe court changed tbe answer to the seventh question from No to Yes, and tbe answer to tbe eighth question from No to Yes, and denied defendant’s motion to change answers to other questions in the special verdict. The court denied plaintiff’s motion for judgment on the verdict, and ordered judgment in favor of the defendant dismissing the plaintiff’s complaint with costs. Judgment was entered accordingly, from which this appeal was taken.

*Fred Doering,*for the appellant.

Eor the respondent the cause was submitted on the brief of *J. M. Clarice.*

The following opinion was filed December 6, 1910:

KeewtN, J.

By the answers to the first, second, and fourth questions of the special verdict as found by the jury, which the court below refused to change, it is established that it was agreed between plaintiff and defendant on or about August 15, 1899, that if a purchaser of the defendant’s eleven acres should be procured by the plaintiff at the highest price obtainable and satisfactory to the defendant, the defendant would pay plaintiff two per cent, of the amount obtained as commission, and that this agreement was modified on or about August 20, 1902, by the defendant fixing the price at which the plaintiff should offer defendant’s property, being a tract of ten acres, at $2,000 per acre, and that the plaintiff did procure purchasers for said ten acres who were ready, willing, and able to purchase the same at $2,000 per acre. These findings of the jury are supported by the evidence, and alone are sufficient to entitle the plaintiff to recover independent of other findings in the special verdict, under the established rule of this court. *Kilpinski v.*Bishop, 143 Wis. 390, 127 N. W. 974; *Donohue v. Padden,*93 Wis. 20, 66 N. W. 804; *Barry v. Schmidt,*57 Wis. 172, 15 N. W. *11824; *Stewart v.*Mather, 32 Wis. 344, 355; *Orton v. Scofield,*61 Wis. 382, 21 N. W. 261. Under tbe modified contract, as found by tbe jury, tbe contract of tbe plaintiff witb tbe defendant was a specific one, namely, to procure a purchaser able, ready, and willing to pay $2,000 per acre for ten acres of tbe land. Tbe price was fixed by tbe defendant and tbe services to be performed specific, upon tbe performance of wbicb plaintiff was entitled to bis compensation. Tbe fact that plaintiff bad a contract witb tbe purchaser for a commission in no manner conflicted witb bis duty to tbe defendant. This rule is recognized by this court in tbe cases above cited as well as by other courts. *Mullen v.*Keetzleb, 7 Bush, 253; *Rupp v. Sampson,*16 Gray, 398. Of course if tbe plaintiff occupied a position wbicb required diligence in obtaining' as high a price for tbe defendant’s land as possible, or if tbe contract between tbe parties were such as to render tbe contract of tbe plaintiff witb tbe purchaser at variance witb bis duty to tbe defendant, a very different question would be presented. Both contracts could not stand together, because tbe two engagements would be inconsistent. This rule was aptly stated by this court on tbe former appeal (125 Wis. 631, 104 N. W. 703), at page 633:

> “An agent who undertakes tbe duty of making a sale for another, or performing a duty in that connection involving diligence in promotion of *the*employer’s interest, cannot recover commission if, without tbe seller’s knowledge, be also be employed upon compensation to work in tbe interest of tbe purchaser.”

This rule is relied upon by counsel for respondent on this appeal, but it is inapplicable. On tbe former appeal there was a general verdict, and tbe jury might well have found under tbe original contract that tbe plaintiff was to procure a purchaser at tbe best price obtainable, and of course under such an agreement plaintiff could not accept compensation from tbe purchaser and at tbe same time recover from tbe *119seller. But in the present case the jury found specifically that the original contract had been modified, and that the defendant had fixed his own price at $2,000 per acre, and the only duty which plaintiff owed defendant was to produce a. purchaser able, ready, and willing to pay $2,000 per acre. When he had done this he had performed his contract with defendant, and was entitled to his commission regardless of any contract which he had with the purchaser. *Kilpinski v.*Bishop, *supra; Donohue v. Padden, supra.*Where the character of the employment of the agent is such that compensation from the purchaser cannot affect his fidelity in the performance of his duty to the seller, as for example where ho is a mere middleman, or employed only to produce a purchaser at a fixed price, the rule that he cannot act for both parties does not apply. *Tasse v.*Kindt, 125 Wis. 631, 104 N. W. 703. It follows, therefore, that the fact found by the jury to the effect that prior to August 20, 1902, plaintiff accepted employment at compensation from Neacy and Read is not material, since under his specific contract with the defendant, as found by the jury, he was at liberty to do so. The distinction is clearly drawn in the decisions in this court heretofore referred to. In *Stewart v. Mather,*32 Wis. 344, at page 355, Chief Justice DixoN, speaking for the court, said:

> *“A*broker whose undertaking merely is to find a purchaser at a price fixed by the seller, or at a price which shall be satisfactory to the seller when he and the purchaser meet, is in reality only a ‘middleman,’ whose duty is performed when the buyer and seller are brought together, and as to whom the policy of the law which excludes double compensation has been considered inapplicable.”

To the same effect is the late case of *Kilpinski v. Bishop,*143 Wis. 390, 121 N. W. 914. It follows, therefore, that changing the answers to questions I and 8 from No to Yes in no way affected the plaintiff’s right to recover, therefore *120tbe court should have ordered judgment in favor of tbe plaintiff upon tbe verdict.

*By the Court.*— Tbe judgment is reversed, and tbe cause remanded witb instructions to tbe court below to render judgment for tbe plaintiff.

Tbe following opinion was filed December 10, 1910:

SiebecKER, J.

(dissenting).. Tbe court bolds tbat tbe plaintiff is entitled to recover upon tbe verdict as constituted after tbe trial court changed tbe jury’s findings to questions *1*and 8. Tbe decision is based on tbe idea which is expressed in tbe opinion as follows:

> “The defendant bad fixed bis own price at $2,000 per acre, and tbe only duty which plaintiff owed defendant was to produce a purchaser able, ready, and willing to pay $2,000 per acre. When be bad done this be bad performed bis contract witb defendant, and was entitled to bis commission regardless of any contract which be bad witb tbe purchaser.”

This decision, in my opinion, disregards tbe cardinal ingredient of agency tbat in case the agent’s duties to tbe seller, under a contract like tbe one involved here, conflict witb those of tbe buyer, it is illegal. Tbe rule of law is tbat an agent employed by tbe owner of real estate to sell tbe same cannot accept employment from a prospective purchaser thereof if tbe duties of such employments conflict. Tbe rule is founded on tbe accepted judgment of mankind, and is based on tbe idea tbat a person cannot faithfully serve two masters at tbe same time when tbe duties toward tbe two are necessarily antagonistic. Tbe result of tbe adjudications on tbe subject is well expressed and formulated as follows:

> “One who employs a broker to find a customer to exchange real estate witb him has tbe right to assume tbat be is acting solely in bis interest, and is not to receive a commission from the customer. If the one principal employing him knows tbat be is employed by tbe other principal, then both be and *121the broker are guilty of wrong committed against tbe other principal, and the law will not enforce an executory contract entered into in fraud of the rights of the first employer. . . . 'The transaction itself is void as against public policy and good morals, and both parties thereto being *in pari delicio,*the law will leave them as it finds them.’” 2 Clark & Skyles, Agency, § 765 *(a).*

I cannot conceive how the duties of plaintiff under the respective employments of defendant and the purchasers can be treated as not conflicting. It was declared by this court:

> “When an agent is thus employed by one party to sell and by the other to purchase, and is vested with any discretion in the negotiation, his duties are in conflict and in respect to adverse interests, and he cannot fairly serve both parties.” *Barry v. Schmidt,*57 Wis. 172, 15 N. W. 24; *Stewart v. Mather,*32 Wis. 344; *Meyer v. Hanchett,*43 Wis. 246; Mechem, Agency, § 972.

The only permissible exception to such double employment is when the agent is acting as a middleman, and is upon the ground that in this relation he contracts to exercise his skill and influence for both parties for bringing them together, but that he is indifferent between them as to the negotiations. *Tasse v. Kindt,*125 Wis. 631, 104 N. W. 703, and cases cited above. I am unable to agree to the opinion that the subsequent employment of the plaintiff by Neacy and Eead, which was unknown to the defendant, made plaintiff a middleman between them and the defendant. Plaintiff’s employment by the purchasers was to negotiate in their interest and against that of the defendant for a reduction of the price of defendant’s land to less than the $2,000 per acre which he had agreed to obtain for the defendant. These two employments necessarily put the plaintiff in a position wherein he was to use his skill and influence to promote the adverse and conflicting interests of his two employers. This he co-uld not legally do*. The fact that the defendant demanded a fixed price and that plaintiff claims to have obtained it finally, *122does not purge Ms double employment of its inherent illegality.

I am, however, of the view that the trial court was not warranted under the evidence in changing the answers to questions I and 8 of the special verdict, and that the verdict of the jury should have been approved. Such verdict would entitle plaintiff to recover, for his employment by the purchasers had wholly ceased before he made the special contract with the defendant in August, 1902, under which the jury found that he secured the purchasers at the stipulated price.

'A motion for a rehearing was denied February 21, 1911.