of fact arising up e

her at a jury.

Sea Cal $19,5

at the tune a verric

be made a specific, and the condutor

and responsive to the pleadings

cours

will

lead on appeal.

"

im

, for made Pr. n.

on v'.

se of

(Cit

Van

R. R.

Knauss v. Gottfried Krueger Brewing Co.

KNAUSS v. GOTTFRIED KRUEGER BREWING CO.

N. Y. Court of Appeals; April, 1894.

[Reversing 62 Hun, 46.]

1. Brokers.] A real estate broker, who is merely employed to find a purchaser for property upon terms and conditions to be determined by the seller when he meets the purchaser, may accept a similar employment from a proposed purchaser; and he is entitled to commissions from each party on the bargain being struck although he has not informed either of his employment by the other.*

2. The same. Nor, in such a case, can it be inferred from the mere fact that the broker stated to the seller that the purchaser was responsible, that such confidence was imposed as would preclude the broker from accepting employment from the purchaser, where such statement was made in answer to an inquiry, which was made for the purpose of merely finding out whether it was worth while to take the subject into consideration, and not for the purpose of determining whether or not to make a sale, or its terms and conditions, if one should be made.

3. The same. The New Jersey statutet which prohibits real estate brokers from claiming commissions, unless their authority to sell is in writing, applies only where the broker is himself authorized to make the sale or exchange of the lands, and not to a transaction in which he has no such authority.

Appeal by plaintiff from a judgment of the General Term of the Supreme Court, first department, affirming a

* See note on the pleadings at the end of this case.

+ Section 10 of the New Jersey Statute of Frauds (passed March 27, 1874), provides that "No broker or real estate agent selling or exchanging land for or on account of the owner, shall be entitled to any commissions for the sale or exchange of any real estate unless the authority for selling or exchanging such land is in writing, and signed by the owner, and the rate of commission on the dollar shall have been stated in such authority."

Knauss v. Gottfried Krueger Brewing Co.

judgment, entered upon a direction of the court at circuit, dismissing the complaint.

The action was brought by William H. Knauss, a real estate broker, to recover commissions for procuring a purchaser for the brewery of defendant, the Gottfried Krueger Brewing Company.

The trial court granted defendant's motion to dismiss the complaint on the ground that, if there was any employment of plaintiff by the defendant company, it was in New Jersey and no authority in writing had been shown in accordance with the requirements of the New Jersey laws; and also upon the ground that plaintiff had shown by his own testimony that he was in the employment of the person whom he claims to have been the purchaser, and that he did not notify or advise the defendant that he was in his employ.

The General Term affirmed the judgment dismissing the complaint, holding that as plaintiff was employed as a broker to act for the defendant in effecting the sale of defendant's property, and defendant had entered into the negotiations relying on the assurance of plaintiff as to the responsibility and character of those with whom he had to deal, defendant's secret agreement by which he was to receive compensation from the purchaser precluded him from recovering from the defendant.

The further facts are fully stated in the opinion.

Andrew Wesley Kent (John Cummins, attorney), for appellant.-I. No agreement express or implied was made in New Jersey (Citing Waldron v. Ritchings, 9 Abb. Pr. n. s. 359 Jewell . Wright, 30 N. Y. 259; Dickinson 2. Edwards 77 Id. 573); and in any case the defense of the statute was not available under a general denial (Citing Monroe v. Douglass, 5 N. Y. 447; Angell v. Van Schaick, 56 Hun, 247; Rothschild v. Rio Grande R. R.

Knauss v. Gottfried Krueger Brewing Co.

Co., 59 Id. 454; Fagan v. Strong, 7 N. Y. Supp. 919; Graves v. Cameron, 9 Daly, 152).

II. Plaintiff's relation to both buyer and seller was that of middleman (Citing Story on Agency, § 31; Jarvis v. Schaefer, 105 N. Y. 289; Dearing v. Sears, 3 N. Y. Supp. 31; Empire State Ins. Co. v. American Central Ins. Co., 138 N. Y. 446, 449).

III. Plaintiff's relation to the buyer and the seller being that of middleman, he may receive compensation from either, even without knowledge of the other (Citing Rupp v. Sampson, 16 Gray, 398; Siegel v. Gould, 7 Lans. 179; Herman v. Martineau, 1 Wis. 136; Stewart v. Mather, 32 Id. 844; Barry v. Schmidt, 57 Id. 172; Orton v. Schofield, 61 Id. 382; Ranny v. Donovan, 78 Mich. 318; Montross v. Eddy, 94 Id. 100; Manders v. Craft, 32 Pac. Rp. 836; Mullen v. Kietzleb, 7 Bush, Ky. 253; Walker v. Osgood, 98 Mass. 348; Rice v. Wood, 113 Id. 133: Holcomb v. Weaver, 136 Id. 235).

IV. The averments of the complaint are sufficient to justify a recovery as middleman (Citing Velie v. Newark City Ins. Co., 12 Abb. N. C. 309; Note on Pleadings, 24 Id. 338; Rogers 7. New York & Texas Land Co., 134 N. Y. 197; Knapp v. Simon, 96 Id. 284; McBride v. Langan, 18 Civ. Pro. R. 201; Moffat v. Fulton, 132 N. Y. 507).

Louis Marshall (Guggenheimer & Untermyer, attor neys), for respondent.-I. Plaintiff's undisclosed employment by the purchaser precludes him from recovering commissions from the seller (Citing Carman v. Beach, 63 N. Y. 97; Story on Agency, 31; Farnsworth v. Hemmer, I Allen, 494; Claflin 2. Farmers' & Citizen's Bank, 25 N. Y. 293; N. Y. Central Ins. Co. v. National Prov. Ins. Co., 14 Id. 85; Ewell's Evans on Agency, 14; Greenwood . Spring, 54 Barb. 375; Neuendorff v. World Mutual Life Ins. Co., 69 N. Y. 389; Raisin v. Clark, 41 Md. 148; Walker v. Osgood, 98 Mass. 348; Smith v. Townsend, 10) Id 500; Rice v. Wood, 113 Id. 133; Bellman v.

Knauss v. Gottfried Krueger Brewing Co.

Loomis, 41 Conn. 581; Everhart v. Searle, 71 Pa. St. 256; Morrison v. Thompson, L. R. 9 Q. B. 480).

II. The contract of employment was made in New Jersey and is void by the Statute of Frauds (Citing Arnold v. Angell, 62 N. Y. 509).

III. It was not necessary for defendant to affirmatively allege by the way of defense, that plaintiff occupied towards the purchaser such a relation as to disentitle him to compensation from defendant (Citing Griffin v. Long Island R. R. Co., 101 N. Y. 354; Weaver v. Barden, 49 Id. 286; Hier v. Grant, 47 Id. 278; Knapp v. Roche, 94 Id. 333; Gilman v. Gilman, 111 Id. 205; Terry 2. Munger, 49 Hun, 560).

IV. Respondent has the right, in support of the judg ment, to urge any sufficient ground appearing from the record which he might have raised in the court below, which could not have been obviated (Citing Scott v. Morgan, 94 N. Y. 508, 515; Allard v. Greasert, 61 Id. 4; Simar v. Canaday, 53 Id. 298; Newcomb v. Clark, 1 Den. ̧ 226; Stevens v. Hyde, 32 Barb. 171).

V. Assuming that plaintiff acted as a middleman, yet since he was not entirely indifferent to the parties, and without defendant's knowledge acted as the active adviser of the purchaser for a consideration, he forfeited his right to compensation from the defendant (Citing Mechem on Agency, $ 973).

VI. Defendant need not show actual injury in consequence of plaintiff's double dealing (Citing Harrington v. V. G. D. Co., L. R. 3 Q. B. Div. 549).

PECKHAM, J.-This action was brought to recover for services alleged by plaintiff to have been performed by him for defendant in regard to the sale of the brewery owned by the defendant, to one Robert Bliss or his assignee.

The answer put the employment in issue and denied that any service had been performed by, or that any sum