Addison v. Wanamaker , 185 Pa. 536 ( 1898 )

Opinion by

Me. Chiee Justice Steeeett,

This action of assumpsit was brought to recover $2,250 commissions at the rate of two and one half per cent on $90,000, the price for which defendant’s former residence in Washington city was sold in 1893. Plaintiff averred in substance that, acting for the defendant as his real estate broker, he effected the sale and thereby earned the commissions claimed. The defendant, on the other hand, denied that he ever employed plaintiff to sell the property or procuro a purchaser therefor, and also denied that he owed him the sum claimed or any sum whatever. It was, of course, incumbent on the plaintiff to prove a contract, express or implied, with the defendant. In that be signally failed. The evidence tended strongly to prove that he had two clients or customers, each of whom wished to buy property similar in grade, etc., to that of tlio defendant. For one of these be finally arranged, through defendant’s agent, satisfactory terms of purchase, and the property was subsequently conveyed accordingly ; but there is not a particle of evidence that the plaintiff was ever authorized by the defendant to represent him in the transaction. On the contrary, the defendant appears to have been studiously careful to avoid saying or doing anything from which any inference of employment as his agent for any purpose, might be drawn. The plaintiff’s suggestion, that irrespective of any contractual relation, whatever, between the broker and the vendor, it is customary for tbe latter to pay the commissions of the former, and therefore he is entitled to recover, cannot bo entertained. No such viciously bad custom as that should ever be recognized, unless it has been previously made the subject of agreement between all the parties concerned ■ — vendor, vendee and the broker. The plaintiff in this case was manifestly the employee of the person who afterwards became purchaser of the property, and hence be was not in a position to properly act as agent of the defendant. That “ no man can serve two masters ” is a sound proposition resting on the highest and best authority. Any alleged agency that is in conflict with ibis principle must rest on express contract between tbe parties in interest. As was said in Cannell v. Smith, 142 Pa. 25, “it is against public policy and sound morality for a man to act as broker for botlx parties, unless that fact is fully communicated to them.” To the same effect are Everhart v. Searle, 71 Pa. 256; Rice v. Davis, 136 Pa. 439.

Without further reference to the facts or the principles involved, we are all of opinion that the learned referee was clearly light, on the evidence before him, in concluding “ that the plaintiff has failed to establish any undertaking upon the part of the defendant to pay him the commissions demanded, and that judgment should be entered for the defendant.”

Judgment affirmed.