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the broker according to the original agreement between them.-(City Ct. 1900) Minster v. Benoliel, 32 Misc. Rep. 630, 66 N. Y. Supp. 493, judgment reversed Miuster v. Beuohol (Sup. 1901) 33 Misc. Rep. 586, 67 N. Y. Supp. 1044.

[S] (N. Y. 1901) Where a correspondence between a broker and a vendor of land showed that the broker was merely seeking a vendor in the course of his employment for an intending purchaser, the broker was not entitled to commissions from the vendor.--Curry v. Terry, 34 Misc. Rep. 797, 69 N. Y. Supp. 932.

[t] (Pa. 1902) Where a broker is employed to effect a sale of realty at a fixed price for a named condition, and, without informing his employers, makes a like contract with the prospective purchaser, he is not entitled to recover commissions from the sellers.-Linderman v. McKenna, 20 Pa. Super. Ct. 409.

(u] (Tex. 1905) Where, in an action on a broker's contract for the sale of real estate, he alleged that after undertaking the sale for defendant he reported to him that he had a purchaser who had offered him $5,000 in cash to bring about the purchase, and that defendant assented to plaintiff's acceptance of the joint employment, and stated that it would in no wise interfere with their contract, the petition was not demurrable as showing a forfeiture of plaintiff's right by his acceptance of an inconsistent employment.-Shropshire V. Adams, 89 S. W. 448.

[v] (Wash. 1906) A broker, employed to purchase land who conceals from the purchaser the fact that the vendor will pay the broker a commission on making a sale, has the burden of proving perfect fairness in the transaction, and, in the absence of satisfactory proof, equity will treat him as guilty of constructive fraud.—Hanna v. Haynes, 42 Wash. 284, 84 Pac. 861.

[w] (Wash. 1906) A purchaser employed a broker to purchase land under an agreement providing that the profits on a resale should be divided between them. The broker was informed by a third person that the owner of the land would sell for $10,000 and pay a commission of $500. The broker purchased the land for the purchaser and paid the owner $9,500 and offered to pay $500 to the third person as his commission who insisted that he should share with the broker in the profits on a resale. The broker paid $250 to the third person and retained the balance and agreed to give him a half interest in the selling profits. Held, that the relation of principal and agent existed between the purchaser and the broker, and the broker was guilty of constructive fraud in concealing from the purchaser the fact that he received a commission from the owner, rendering the agreement between them voidable at the election of the purchaser.—Hanna v. Haynes, 42 Wash. 284, 84 Pac. 861.

[x] (Wash. 1906) A purchaser, employing a broker to purchase land under an agreement providing that the profits on a resa le should be equally divided between them, discovered that the broker was guilty of constructive fraud, because of his agreement with the vendor for a commission on making a sale. The purchaser accepted the benefits of the services of the broker. Held, that the purchaser, in order to obtain a rescission of the agreement, must pay to the broker the value of his services.—Hanna v. Haynes, 42 Wash. 284, 84 Pac. 861.

[y] (Wis. 1877) Where plaintiffs were employed as brokers by defendant to sell his land, and defendant did not consent to their acting as agents for both parties, and they received a commission from the other party, they cannot recover a commission from defendant.-Meyer v. Ilanchett, 43 Wis. 246.

[z] (Wis. 1905) Where a real estate agent, employed to sell the property for the highest price obtainable, arranged with a prospective purchaser to pay a commission under certain contingencies, this arrangement being made while the principal was urging the agent to obtain a higher price than that for which the property had formerly been offered, the agent was not entitled to commission on consummation of the sale to the purchaser who had agreed to pay commission.—Tasse v. Kindt, 125 Wis. 631, 104 N. W. 703.

[zz] (Eng. 1903) Where an agent, in effecting a sale of property for his principal, has taken a secret commission from the purchaser, the principal, notwithstanding that he has recovered from the agent the amount of the secret commission, is further entitled to recover back the commission which he himself has paid to the agent.-Andrew v. Ramsay & Co., 72 Law J. K. B. 865, (1903] 2 K. B. 635, 89 Law T. 450, 52 Wkly. Rep. 126.

II. MERELY BRINGING PARTIES TOGETHER. [a] If the duty of a real estate broker is simply to bring together two persons who desire to exchange their lands, and the broker's entire duty is performed when he has brought them together, he is a mere middleman, not representing conflicting interests, and may receive compensation from both parties. -(Cal. 1899) Clark v. Allen, 125 Cal. 276, 57 Pac. 985 ;

(Colo. 1893) Manders v. Craft, 3 Colo. App. 236, 32 Pac. 836. [b] (Ky. 1892) As a rule a broker acting for both the vendor and purchaser in effecting an exchange of property can receive compensation from neither, their interests being incompatible; but where the agent representing both parties does nothing more than to bring them together, and does not aid or assist either in the trade, he can receive compensation from both.—Delph v. Wainscott, 14 Ky. Law Rep. 304.

[c] (Mont. 1896) Where a broker's contract to procure a purchaser at a specified price simply requires him to bring his principal and purchaser together, so that they themselves can make their own contract, he may recover commissions from both parties on separate contracts with each.—Childs v. Ptomey, 17 Mont. 502, 43 Pac. 714.

[d] (N. Y.) Real estate brokers, employed as middlemen, to bring purchasers together to enable them to make their own bargain, may charge commissions to both parties, since they are not agents to buy and sell, and therefore not within the rule which prohibits their acting without consent as agents for both buyer and seller.-(1872) Siegel v. Gould, 7 Lans. 177; (1878) Balheimer v. Reichardt, 55 How. Prac. 414.

[e] (N. Y. 1894) Where a broker is employed merely to introduce a purchaser to the seller, without taking any part in the negotiations in consummation of the sale, his right to commissions promised him by the seller is not affected by the fact that, without the latter's knowledge, he was also receiving pay from the purchaser.---Knauss v. Gottfried Krueger Brewing Co., 142 N. Y. 70, 36 N. E. 867, reversing (1891) 62 Hun, 46, 16 N. Y. Supp. 357.

[f] (N. Y. 1894) Where brokers employed to sell are not vested with any discretion respecting the price and terms of sale, they are mere middlemen, and may recover commissions from both parties.—Haviland v. Price (Com. Pl.) 6 Misc. Rep. 372, 26 N. Y. Supp. 757 ; Bonwell v. Auld (Com. Pl.) 9 Misc. Rep. 05, 29 N. Y. Supp. 15, affirming (1894) 7 Misc. Rep. 447, 27 N. Y. Supp. 936.

[g] (N. Y. 1898) A middleman, who brings the vendor and purchaser of real estate together, but does not negotiate the sale or its terms, is a broker, and may charge commissions to both parties.—Southack v. Lane, 23 Misc. Rep. 515, 52 N. Y. Supp. 687.

[h] (N. Y. 1901) Where a broker was merely authorized to find and introduce a person with whom his employer might effect an exchange of his property, and was not authorized to fix the value of the property or agree on any of the terms, his right to a commission was not affected by his also receiving a commission from the other party.-Norton v. Genesee Nat. Savings & Loan Ass'n, 57 App. Div. 520, 68 N. Y. Supp. 32.

[i] (N. Y. 1902) Where a broker, having secured a purchaser for a ferry, sued to recover commissions for the sale of another ferry by defendants to the same purchaser, and defendants contended that, if plaintiff had been employed to find a purchaser for the second ferry, he was not entitled to compensation for such sale because of an agreement between him and the purchaser whereby he was to receive compensation from the purchaser if he bought the first ferry, it was proper to charge that, if the plaintiff had no ing to do with the terms of the sale, and he was not intrusted with discretion, his arrangement for receiving compensation would not preclude recovery. Judgment (1900) 56 App. Div. 203, 67 N. Y. Supp. 688, affirmed.—Gracie v. Stevens, 171 N. Y. 658, 63 N. E. 1117.

III. EXCHANGE OF PROPERTY. [a] A broker cannot represent and recover commissions from both the par. ties to an exchange of real estate, which he has negotiated. -(D. C. 1879) Bates v. Copeland, 4 MacArthur, 50;

(Ky. 1869) Lloyd v. Colston, 68 Ky. (5 Bush) 587. [b] The agent of different parties, who was employed to sell lands for each, brought about an exchange of the same property between the owners themselves. Held, that the agent was entitled to the customary commissions from each of his principals. —(Ky. 1870) Mullen v. Keetzleb, 70 Ky. (7 Bush) 253 ;

(Mass. 1860) Rupp v. Sampson, 82 Mass. (16 Gray) 398, 77 Am. Dec. 416. [c] (Mass. 1861) Where a broker has acted for both parties in negotiating an exchange of real estate between them, without informing either that he was employed by the other, evidence of a custom among brokers to charge a commission to both parties in such cases is inadmissible in an action by the broker to recover his commission from one of the parties, since such custom, if shown to exist, would be unreasonable, and contrary to good morals and sound policy.-Farnsworth v. Hemmer, 83 Mass. (1 Allen) 494, 79 Am. Dec. 756.

[d] (Mich. 1900) One who employs a broker to find a customer to exchange real estate with him has the right to assume that he is acting solely in his interest, and is not to receive a commission from the customer.---Hannan v. Prentis, 124 Mich. 417, 83 N. W. 102.

[e] (Minn. 1902) Where a real estate broker is employed by an owner of lands to exchange them, and a third person, having information thereof from the broker, communicates through him with the owner and effects an exchange, there is no legal inference of an implied promise by the other party to pay the broker a commission for services.-Dartt v. Sonnesyn, 86 Minn, 53, 90 N. W. 115.

[f] (Neb. 1891) Plaintiff, a broker, was employed by defendant to sell certain city property, and effected an exchange of real estate with one P. After the transaction was complete, P. paid plaintiff $100 for his services, although he testified that he had previously not employed him. Held, there being no charge of bad faith, that if defendant had employed plaintiff to sell his property, and he had procured a sale and exchange of the same upon terms satisfactory to defendant, he was entitled to a fair compensation for his services. -Campbell v. Yager, 32 Neb. 266, 49 N. W. 181.

[g] (N. Y. 1898) A real estate broker, engaged by defendant to secure an exchange of property, who, unknown to defendant, is also agent for the other contracting party, is not entitled to compensation from defendant.-Norman v. Reuther, 25 Misc. Rep. 161, 54 N. Y. Supp. 152.

[h] (Can. 1901) An agent, acting for and representing the vendor, is not entitled, in the absence of an agreement to that effect, to recover from the purchaser a commission on the value of land received by the vendor in exchange in part payment of the price of the land sold.-Browne v. Gault, Rap. Jud. Que. 19 C. S. 523.

IV. EFFECT OF KNOWLEDGE OF DUAL EMPLOYMENT. [a] One who employs a real estate broker with knowledge that he is also acting for the other party to the agreement is liable for his services. -(Ind. 1877) Alexander v. Northwestern Christian University, 57 Ind. 466 ; (N. Y. 1895) Lansing v. Bliss, 86 Hun, 205, 33 N. Y. Supp. 310; (1897) Abel

v. Disbrow, 15 App. Div. 536, 44 N. Y. Supp. 373; (1897) Geery v. Pollock

(Sup.) 16 App. Div. 321, 44 N. Y. Supp. 673. [b] Where a broker is employed by each party, with notice that he is acting in the matter for the other, and with such notice each agrees his commission, he can recover from both. -(Minn. 1906) Wasser v. Western Land Securities Co., 97 Minn. 460, 107

N. W. 160; (N. Y. 1873) Rowe v. Stevens, 53 N. Y. 621; Id., 35 N. Y. Super. Ct. (3

Jones & S.) 189; (Pa. 1900) Maxwell v. West, 23 Pa. Co. Ct. R. 302, 30 Pittsb. Leg. J. (N. S.)


pay him

[C] (Ark. 1907) Where a real estate agent, acting for both parties with their knowledge and consent in an exchange of land, misrepresented to one of the parties that the other was the owner of a certain farm and rated it at a certain value, when he knew the real owner was offering to sell for much less, such party was entitled to discharge him as agent, and the agent was not entitled to any commission for the exchange of property thereafter made between the parties.-Featherston v. Trone, 102 S. W. 196.

[d] (Ga. 1903) Where, in an action by real estate agent for commissions, dual agency was relied on as a defense, it was necessary for defendant to prove, not only the fact of such agency, but that the same was not known to both parties.—Red Cypress Lumber Co. v. Perry, 118 Ga. 876, 45 S. E. 674.

[e] (Ill.) Where a person is acting as agent for both vendor and vendee with their knowledge and positive consent, or with such knowledge coupled with proof of facts and circumstances from which consent may be reasonably inferred, the agent is not precluded from recovering commissions from both vendor and vendee.-(1904) Keach v. Bunn, 116 Ill. App. 397, judgment affirmed Bunn v. Keach (1905) 214 Ill. 259, 73 N. E. 419.

[f] (Mo. 1880) Where the parties to an exchange of real estate employed the same broker, and were brought together by him, and made their own bargain, and each had knowledge that the other was to pay the broker, neither can defend against an action by him for commissions.-Collins v. Fowler, 8 Mo. App. 588.

[g] (Mo. 1880) Effect of knowledge of parties. See Collins v. Fowler, 8 Mo. App. 588, memorandum.

[h] (Mo. 1885) Whether a real estate broker can recover commissions from both parties to a contract of sale depends on whether both had full knowledge of his double agency, and acquiesced in it.—De Steiger v. Hollington, 17 Mo. App. 382.

[i] (Mo. 1904) Where a broker transmitted all orders for sales and purchases given him to a corporation, he receiving a portion of the commission, the broker was not deprived of any right of recovery on such transactions as against the corporation because he was in truth the agent of both parties, his attitude as a broker for his customers and as correspondent of the corporation being known and recognized by both.-Stripling v. Maguire, 108 Mo. App. 594, 84 S. W. 164.

[j,k] (N. Y. 1894) A broker is entitled to commissions for procuring an exchange of real estate, though he represented both parties, where it appears that such fact was known to the parties at the time, and that it is a custom among brokers to charge commissions against both parties to an exchange of property.-Haviland v. Price (Com. Pl.) 6 Misc. Rep. 372, 26 N. Y. Supp. 757.

[1] (N. Y. 1898) The fact that plaintiffs represented both parties in an exchange of their properties, and expected to receive a commission from both parties, with full notice to the defendant and knowledge by him of such fact, does not constitute a defense to an action against him for commissions earned -Whiting v. Saunders, 22 Misc. Rep. 539, 49 N. Y. Supp. 1016.

[m] (N. Y. 1906) Where a broker was employed by both parties to a contract of exchange of property, neither could refuse compensation, in the absence of express agreement to the contrary, where he had knowledge that the broker, in whom no discretion was left or trust reposed, was also in the employ of the other party.—Tieck v. McKenna, 115 App. Div. 701, 101 N. Y. Supp. 317.

[n] (N. C. 1902) In an action by a real estate agent for commissions, objected to on the ground that plaintiff represented both parties, plaintiff testified that defendant told him he would pay him a good commission if he succeeded in making a trade, and that he informed both parties that he would charge them commissions, to be paid equally by them, and that both agreed to pay them. Held sufficient, if believed, to justify a recovery.-Lamb v. Baxter, 130 N. O. 67, 40 S. E. 850.

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(Circuit Court of Appeals, Second Circuit. June 10, 1907.)

No. 222.


A bill in equity alleged that complainant owned certain stock and bonds of a railroad company; that defendant represented that he had contracted to sell a large amount of the stock and bonds of said company to another company and agreed to pay complainant the same prices he was to receive for his stock and bonds and for those of other holders which he might secure; that a written contract to that effect was entered into between them and carried out, but that such representations were false and fraudulent, in that defendant was to receive, and did receive, larger prices than those stated, the exact amount of which were unknown to complainant. Held, that such bill did not state a cause of action cognizable by a federal court of equity, complainant having on the facts alleged a complete and adequate remedy at law by an action to recover damages for the fraud, and the amount actually received by defendant being as readily ascertainable in such an action as in an equity suit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Equity, g 156.]

Appeal from the Circuit Court of the United States for the Southern District of New York.

S. C. Carleton and Wm. J. Harding, for appellant.
Carter, Ledyard & Milburn, for appellee.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. The salient allegations of the bill are as follows: That in July, 1892, the complainant stated to the defendant, who is the sole surviving partner of the firm of R. T. Wilson & Co., that he intended to bring an action, in which the said firm would be defendants, to contest the legality of the issue of certain bonds of the Louisville, New Orleans & Texas · Railroad Company. That the defendant thereupon stated and represented to the complainant that he was the president of the said railroad company and that his firm was the owner and holder of a large portion of the capital stock and of certain bonds of the said road and that his firm had agreed with the Illinois Central Railroad Company for the transfer to it of the control of the said Louisville Company. That the form of R. T. Wilson & Co. further stated that they were desirous of obtaining more bonds and stock of the Louisville Company than they then controlled to enable them to take advantage of their agreement with the Illinois Company and, for the purpose of inducing the complainant to part with his own bonds and stock and to procure the delivery of other like bonds and stock to the said firm, the defendant represented that only by dealing with his firm could complainant obtain more than $210 for each bond and $10 for each share of stock owned by him; which statement and representation was false and fraudulent. That thereupon the said firm offered the complainant, if he would refrain from bringing said suit, that they would pay

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