Sec. 340. Nature Of Interpleader

"A bill of strict interpleader is one in which the complainant asserts his possession of some fund or something in which he claims no personal interest, but in which other persons whom he makes defendants set up conflicting claims, and the complainant cannot safely determine to which claim he should yield."2 No attempt will be made to enter into details concerning the derivation and particular nature of interpleader, nor whether interpleader exists in common law actions only by virtue of statute or not, as our object is to confine ourselves as closely as may be to the subject of interpleader in relation to double claims for the same commission.

The question may arise in three ways: (1) where both brokers bring separate actions for the same commission, and the principal asks that the actions be joined, as it were, into one, and that he may drop out of both upon paying the commission into court, and leave the brokers to fight it out between them, or that he, the principal, may be compelled to contest but one suit; (2) where one of the brokers brings suit and the principal asks that the other broker, who also makes claim, be joined with or substituted for the principal in the suit; (3) where neither broker brings suit, but both make claim, and the principal takes the initiative and brings suit against both brokers to determine the conflict.

2Metropolitan Life Ins. Co. v. Hamilton, 70 Atl. 677 (N. J. 1908)

Sec. 341. Interpleader Permissible In Broker's Commission Cases In Some States

In New York there have been cases which held that the right to interplead in brokers' commission suits did not exist,3 but the right to interplead adverse claimants to a brokerage commission on the sale of realty is now recognized there.4 Where there is no pretense or suggestion that the owner has rendered himself liable to double commissions, and he concedes his liability to one or the other of the claimants, but is unable to determine between them and is unwilling to do so at his own risk, the owner may pay the money into court and interplead the rival claimants.5

And in Rogers v. Picken Realty Co., 55 Misc. 199 (N. Y. 1907), where two brokers claimed commission on the same sale, interpleader was held proper, the court distinguishing other cases in which each claim was based on a separate contract. Here it was held that where there is in the hands of a defendant money which belongs to the plaintiff or a third person, and is claimed by both of them, and the holder of the fund has no interest in the subject matter, and the question to be determined is the title to the particular fund in respect to which the claims are made, an order substituting the second claimant in place of the original defendant may be made. And in Pennsylvania interpleader has been granted to determine conflicting claims to the same brokerage commission.6

Sec. 342. Interpleader Not A Universally Recognized Right

The subject of interpleader is not, however, free from doubt. A typical and at the same time a recent case which presents the question as it very frequently arises is that of Maxwell v. Frazier, 96 Pac. 548 (Ore. 1908). Maxwell engaged Frazier, a real estate broker, to sell his property for him at a fixed price and for a commission of $50. At the same time Maxwell, as he had a right to do,7 engaged Hurst also to sell the property. Hurst claimed that his commission was not fixed in advance, but that he was to receive the reasonable value of his services.

3 Cohen v. Cohen, 35 Misc. 206 (N. Y. 1901); Olsen v. Moran, 50 Misc. 655 (N. Y. 1906).

4 Dardonville v. Smith, 133 App. Div. 234 (N. Y. 1909). 5 Trembley v. Marshall, 118 App. Div. 839 (N. Y, 1907). 6 Brooke v. Smith, 13 Pa. Co. Ct. 557 (1893)

Presently Maxwell sold the property to one Corby, and being unable to determine whether Frazier or Hurst was the procuring cause of the sale, came into Court, admitting that he owed $50 commission either to Frazier or to Hurst for procuring the purchaser, but alleging that they both claimed it and were threatening to bring action against him therefor and that he was unable to decide, without hazard to himself, to which it belonged.

Maxwell brought this interpleader suit without collusion with either Frazier or Hurst, and tendered the sum of $50 into court for the benefit of the successful claimant. One of the brokers contended that the case was not a proper one for interpleader. The court in upholding this contention said: " 'It is essential to the right to file the bill that there be two or more claimants to the fund in dispute, capable of interpleading and settling the matter between themselves.'8 The issues must be between the defendants as to their right to the same specific thing or fund, and not an issue with the plaintiff as to separate claims against him. Mr. Justice Wolverton in North Pac. Lbr. Co. v. Lang, 28 Or. 246, 258; 42 Pac. 799, 803; 52 Am. St. Rep. 780, in discussing this remedy and when it may be invoked, says: 'One of the essential requisites to equitable relief by bill of interpleader is that all the adverse titles of the respective claimants must be connected or dependent or one derived from the other or from a common source. There must be privity of some sort between all the parties, such as privity of estate, title or contract, and the claims should be of the same nature and character. In cases of adverse independent titles or demands, actions to determine the rights of litigants must be directed against the party holding the property, and he must defend as best he can at law. * * * Thus, where the only relation which the plaintiff sustains to the defendants is that he is the debtor of one of them, he cannot invoke the aid of an interpleader.' To the same effect is 23 Cyc. 3-8. In the case before us, each of the defendants relies upon a separate contract with the plaintiff. There is no privity between them, but they are claiming on independent demands. Neither defendant is claiming the commission through any privity with the other. The plaintiff is not a stakeholder, but his liability to each of the defendants, if liable at all, is upon a personal contract, and the bill will not be entertained to try out a mere legal liability of the plaintiff to a defendant. Such is not the province of a bill of interpleader. The creditor is entitled to his remedy at law. A parallel case to the one at bar is Sachsel v. Farrar, 35 111. App. 277. The vendor of real estate filed a bill requiring two real estate agents to interplead as to which was entitled to commissions for the sale, and it is held that as their claims were upon independent contracts with the vendor, and not by title derived by one from the other, the vendor must make the best defense he can at law, and interpleader will not lie. In (First Natl.) Bank v. Bininger, 26 N. J. Eq. 345, it was held that the true doctrine is that in cases of adverse independent titles, the party holding the property must defend himself at law as best he can. Hoyt v. Gouge, 125 Iowa 603; 101 N. W. 464, which is also a suit to require real estate brokers to interplead, is to the same effect. Also see (Third Natl.) Bank v. Skillings Lbr. Co., 132 Mass. 410. Therefore the case was not a proper one for interpleader.

7 See Sec. 97, 98, 237 supra-8 Citing 23 Cyc. 5.

Where a bill of interpleader is filed, the practice is first to determine whether such a bill will lie. If it will not, it is useless to go further. If it will, then, upon bringing the property in dispute into court, the complainant is discharged from further liability with his costs to be paid out of the deposit, and issues cannot be made against him except as to whether the case is a proper one for interpleader. But the court will require the defendants to interplead and litigate their respective rights to the fund in dispute."9