Opinion
No. 488.
May 14, 1947.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Joseph T. Sherier, of Washington, D.C., for appellant.
Samuel Gordon, of Washington, D.C., (William T. Pace, of Washington, D.C., on the brief), for appellee.
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
Appellee, plaintiff below, a real-estate salesman, sued appellant, a real-estate broker, for one-half the commission received by appellant on the sale of certain property. The trial court found for appellee, and this appeal followed.
Appellee's evidence tended to prove the following: that he was employed as a salesman by appellant, his compensation to be one-half of the commissions on all sales either made by him or in which he was the procuring cause; that appellant told him certain property was for sale and he told appellant he would try to interest labor unions in buying this property; that he called the American Federation of Labor by telephone; that shortly thereafter, appellant told appellee that as a result of appellee's telephone call to the American Federation of Labor, appellant had been put in contact with the National Association of Letter Carriers, an independent national union affiliated with the American Federation of Labor, having its office in the American Federation of Labor building; that appellant stated the deal was a large one and he desired to negotiate it himself, that appellee was inexperienced and should not take part in the negotiations but would receive his share of the commission if a sale were made; that the sale was made to the National Association of Letter Carriers, but appellant refused to pay appellee one-half the commission; and that appellant stated on several occasions to other persons that he was going to pay appellee his commission on the sale of the property involved.
Appellant's evidence directly contradicted that of appellee. It tended to show that the purchaser was never in communication with appellee, directly or indirectly; that appellant personally conducted all the negotiations culminating in the sale; that appellant never promised appellee one-half of the commission on the sale in question; and that he never stated he was put in touch with the purchaser through appellee's telephone call to the American Federation of Labor.
Appellant contends that the trial court erred in failing to hold appellee was not the procuring cause of the sale. With this contention we can not agree. The relationship of appellant and appellee was not that of rival or competing brokers. It was something more than that of cooperating brokers. A relationship of a fiduciary nature arose from the agreement between them with the necessary incidents of good faith and mutual trust. Consequently, the principles governing the right to a commission where there are rival brokers do not and should not apply.
The Real Estate and Business Brokers' License Act treats a real-estate salesman as an employee of the broker, Code 1940, § 45-1402, and provides that a real-estate salesman may not accept a commission or valuable consideration as a salesman from any person except the broker under whom he is licensed. Code 1940, § 45-1408(e).
Spignul v. Blundon, 53 App.D.C. 29, 287 F. 1006.
Davidson v. Jones, D.C.Mun.App., 34 A.2d 261.
Core v. Henley, 179 Ark. 488, 16 S.W.2d 579.
To us it seems clear that the rights of the parties must be governed by the nature of their relationship and the agreement between them. In that respect, a real-estate broker and his salesman stand in practically the same relative position inter se with reference to the right to compensation as do the principal and broker. That being so, the law of principal and broker must be applied to determine appellee's right to compensation.
Saunders v. Yoakum, 12 Cal.App. 543, 107 P. 1007; Leonard v. Roberts, 20 Colo. 88, 36 P. 880; Reasoner v. Yates, 90 Neb. 757, 134 N.W. 651; Barthell v. Peter, 88 Wis. 316, 60 N.W. 429, 43 Am.St.Rep. 906; 12 C.J.S., Brokers, § 80, p. 175; Restatement, Agency, § 454.
Ordinarily it is sufficient to entitle a broker to compensation that a sale is effected through his agency as its procuring cause. And where the broker commences negotiations but the principal assumes exclusive charge of the negotiations, dispensing with the further efforts of the broker, the broker's right to compensation is not defeated. We think this principle applies with equal force to the relationship of broker and salesman, and appellee's right to compensation must be determined on that basis.
Moore Hill, Inc., v. Breuninger, 34 App.D.C. 86. See also Hecht Co. v. Whiteford, 78 U.S.App.D.C. 134, 137 F.2d 929, certiorari denied 320 U.S. 795, 64 S.Ct. 264, 88 L.Ed. 479.
Since the evidence was conflicting, whether appellee's efforts in finding the purchaser, before appellant assumed exclusive charge of the negotiations, were the procuring cause of the sale was a question of fact depending largely on the credibility of the witnesses. The trial court's finding for appellee, therefore, will not be disturbed on appeal.
Affirmed.