Vanderpoel v. Kearns , 2 E.D. Smith 170 ( 1853 )

By the Court. Ingraham, First J.

The testimony of the witnesses in regard to the employment of the plaintiff by the defendant, was of a conflicting character. If the plaintiff’s witness was correct, there was such employment. If the defendant’s'-%itness stated the facts correctly, there was no employment. It was purely a question of fact for the referee, and he has found for the defendant. There is no ground on which we can interfere with his decision. It is not against the weight of evidence, and that is the only cause for which his decision could be set aside.

I am not prepared to adopt the broad ground taken by the referee, as to the illegality of the plaintiff’s claim for any sum, if he had been employed. The service alleged to be rendered was not illegal. It was the amount charged that exceeded the limit fixed by statute. There is no agreement that he should receive that rate of compensation, and the mere promise of payment would not deprive the plaintiff of a legal compensation, if he had been actually employed.

It is apparent, from all the testimony, that the loan was a part of the original contract for the sale of the premises, and that in making it, the plaintiff acted as the agent of the vendor of the lots to the defendant, and received compensation from him. He had no right to act as the agent of the defendant in the same matter. His duties towards the one conflicted with the service which he ought to have rendered to the other, and it is idle to say that he could charge both for services rendered in making one contract.

The judgment must be affirmed.