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NOTES IN THIS VOLUME.

Page

Rights of Brokers to Compensation from Both Parties...

ny Knowledge or Notice Acquired by Officer or Agent of Bank, in

Private Business or Outside Scope of Duties, as Affecting its Liability

139 Deductions and Offsets from Charter Hire of Vessel....

254 General Average

316 Persons by Whom Tender may be Made.

428 Commencement of Period of Limitations Against Prosecutions for Continuing Offenses

519

84 C.C.A.

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(Circuit Court of Appeals, Ninth Circuits June 3, 1907.)

No. 1,415. 1. BROKERS-ACTIONS FOR COMPENSATION-EVIDENCE OF PERFORMANCE OF CON

TRACT.

Defendant entered into a written contract with plaintiff's intestate by which he agreed, in case he should purchase certain mining property at a stated price with the assistance of plaintiff's intestate, to pay the latter a commission. Three days after the death of the decedent a contract was executed by which defendant purchased the property with other property for slightly more than the price named. A witness also testified that on the day before the decedent's death defendant told him of the contemplated purchase, and asked him to ascertain if the decedent would not accept a sum in cash in lieu of an interest in the property which he was to receive under the commission contract. Held, that the contract of sale and such testimony were sufficient, prima facie, to establish that the decedent had performed the service that entitled him to the commission.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, $$ 116, 117.] 2. SAME-RIGHT TO COMPENSATION-ACTING FOR BOTH PARTIES.

Where a broker, although acting as agent for both the seller and purchaser of property, is given no discretionary power to negotiate the sale, but his employment is merely to bring the principals together and to keep them informed as to the condition of the property, the dual employment is not inconsistent nor contrary to public policy, and he may receive payment from both principals!

Ross, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the District of Montana.

John B. Clayberg, Thos. C. Bach, and Ira T. Wight, for plaintiff in error.

E. C. Day, M. S. Wilson, and Charles H. Lovell, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge.

DE HAVEN, District Judge. This is an action at law brought by the plaintiff, as administrator of the estate of Charles S. Gibson, deceased, against L. S. McLure and Charles D. McLure, defendants. The complaint, in addition to other facts necessary to state a cause of action, sets forth that defendants agreed to pay to said Gibson, in the event of the purchase by them, for the sum of $50,000, of the

1 See note at end of case. 84 C.C.A.-1

Broadwater group of mines in the county of Cascade, state of Montana, a commission of $3,000, and ?/100 interest in the property purchased, in return for his assistance in making such purchase, payment to be made at the time of the delivery of the deed of the property; that the property was purchased by the defendants for the price named, and the contract was fully performed upon the part of Gibson; that ?/100 of the property purchased is of the value of $2,000, and judgment is demanded for the sum of $5,000. The evidence disclosed that the defendant Charles D. McLure was not a party to the contract referred to in the complaint, and the action was dismissed as to him. At the close of plaintiff's testimony, the remaining defendant, L. S. McLure, requested the court to instruct the jury to return a verdict for him. This request was refused, and, the defendant declining to introduce any evidence, the court instructed the jury to find for the plaintiff for the full amount sued for. The case is brought here by the defendant L. S. McLure on writ of error. There are various errors assigned, only one of which requires discussion, and that is the one which relates to the action of the court in instructing the jury to return a verdict in favor of the plaintiff.

1. In the consideration of the question presented for decision, it is necessary briefly to refer to the evidence, and to the issues made by the pleadings. The evidence shows that the defendant entered into the following contract with the deceased Gibson, in behalf of whose estate this action was brought:

"Neihart, Dec. 1, 1899. "Should I purchase the Broadwater group of mines and other property for the sum of fifty thousand dollars (and Charles S. Gibson assisting me in the making of said purchase) then in that event I agree to pay to the said Charles S. Gibson in return for above assistance a commission of three thousand dollars at the time of delivery of deed of above property to me.

"I also agree to give him two one-hundredths (2/100) interest in the property in lieu thereof in the event of the incorporation of a company by me on the said property, to give him 2/100 two one-hundredths—of the capital stock of said company at the time of its incorporation in lieu of the said two one-hundredths interest in the property. Said stock to be non-assessable stock.

“The above agreement to be void if I do not purchase the property at the price above stated.

L, S. McLure." This agreement was set out in hæc verba in the defendant's answer, as the contract between himself and Gibson, and it was not alleged that it was intended by the parties thereto to include in such contract other property than the Broadwater group of mines; nor was it suggested at the trial that there was in the minds of the parties to the agreement any other property than that therein specifically mentioned, to wit,' the Broadwater group of mines. This being so, the words “and other property," in the clause of the agreement describing the property to be purchased as "the Broadwater group of mines and other property,” are to be regarded as surplusage, and the agreement construed as only applying to the Broadwater group of mines. Was the evidence sufficient to show that the contract as thus construed was performed by Gibson ?

We agree with the contention of the defendant that under the pleadings it was incumbent upon the plaintiff to prove, first, that the prop

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erty mentioned in this contract was purchased by the defendant for the price named therein-$50,000; and, second, that Gibson assisted him in making the purchase. For the purpose of showing these facts, the plaintiff introduced in evidence a written contract entered into between the owner of the Broadwater group of mines and the defendant L. S. McLure and Charles D. McLure, on April 17, 1900, by the terms of which the vendor was to sell and the defendants purchase the Broadwater group of mines; also all ores on the dumps, all tools, machinery, and implements of every kind and nature, used in and about said mines, for the sum of $50,600. The contract further provided that, “in addition to the Broadwater group above mentioned, and as part of the property hereby agreed to be conveyed,” the vendor “agrees to sell and convey by quitclaim deed all his right, title and interest in and to the tunnel site on the Enterprise No. 2, claim,

and also all and singular the certain quartz lode claim, known and described as the Key.” The evidence shows that Gibson died on the 14th of April, 1900, three days before the execution of the agreement just referred to, and one witness testified that on the day before his death the defendant informed him of the contemplated purchase of the Broadwater group of mines, and of the contract which he had made with Gibson, and requested him to see the latter and ascertain if he would accept $3,000 cash in lieu of stock in the company that was to be formed. The proposition was not made to Gibson, as he died before the witness had an opportunity to see him. This is all of the evidence tending to show performance of the contract sued on, on the part of Gibson, and was, we think, sufficient for that purpose in the absence of evidence to the contrary, and there is no such evidence. The proposition which the defendant authorized the witness referred to, to make to Gibson, was in substance one for a modification of the contract under which he was employed, and the offer so made shows that the defendant then recognized the right of Gibson to the commission stipulated for in his contract, and was in effect an implied admission by him that he had performed the service entitling him to the compensation provided for in that contract, and was therefore some evidence of that fact against the defendant making the admission. The agreement of April 17, 1900, by which the Broadwater group of mines and the other property therein described was purchased for $50,600, is not of itself sufficient to prove that the price paid for the Broadwater group of mines exceeded $50,000, as other property was included in that agreement. In the absence of evidence to the effect that the other property therein described was purchased for less than $600, this agreement did not tend in any degree to weaken the force of the defendant's implied admission that the contract by which Gibson was employed had been fully performed by him.

It is argued, however, by counsel for the defendant, that the proposition to pay money in lieu of certificates of stock may have been intended to settle or compromise a disputed claim; but there is nothing in the evidence upon which to base such a supposition, as it contains no intimation that there was any dispute between defendant and Gib

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