Sec. 49. Acting For Both Parties A Breach Of Contract (P. 49)

Add to footnote 4 (p. 50):

King v. Reed, 24 Cal. App. 229; 141 Pac. 41 (1914); Jacobs v. Beyer, 141 App. Div. 49; 125 N. Y. Suppl. 597 (1910); citing Murray v. Beard, 102 N. Y. 505; 7 N. E. 553; Empire St. Ins. Co. v. Am. Cent. Ins. Co., 138 N. Y. 446; 34 N. E. 200; Everhart v. Searle, 71 Penn St. 256; Farnsworth v. Hemmer, 1 Allen (Mass.) 494; 79 Am. Dec. 756; Walker v. Osgood, 98 Mass. 348; 93 Am. Dec. 168; Rice v. Wood, 113 Mass. 133; 18 Am. Rep. 459; Raisin v. Clark, 41 Md. 158; 20 Am. Rep. 66; Bollman v. Loomis, 41 Conn. 581.

Sec. 51. The Rule Applies To Exchange Of Property (P. 50)

Where in an exchange, the broker has no discretion in respect of any terms or details of the exchange, yet where the principal has the right to expect from the broker the benefit of his knowledge or any information that the broker may possess concerning the property to be taken in exchange by the principal, as for example, the broker's knowledge concerning the value of such property a secret agreement by the broker to accept commissions from the other party, to the exchange would bar the broker of his right to commissions from his principal. Such an instance is said to differ from the cases where the courts have held that a broker may receive double commissions where it appears that he was solely employed to find a purchaser upon terms fixed by the employer, or where it was understood that the broker had nothing else to do but to submit a purchaser to the principal.1

""The reason for this rule is obvious. In such cases the broker cannot possibly be guilty of bad faith towards the employer, who either has fixed all the terms and conditions under which he will sell his property or else has stipulated personally to attend to all negotiations. There is nothing for the broker to do in such cases but to procure a party who is ready and willing to buy the property upon the terms laid down by the employer."2

"The plaintiff had a lawful right, however, to make a contract for commissions from both parties, and he was under no legal or moral obligation to disclose his contract with one to the other. He was given no discretion in the matter, but was simply a broker to bring the parties together. They made their own contract after they were brought together."3

1 Nichols v. Greenstreet. 71 Misc. 196; 130 N. Y. Suppl. 843 (1911); affd., 146 App. Div. 940; 131 N. Y. Suppl. 1131. 2 Nichols v. Greenstreet, supra.

It has been intimated that if a custom exists in any locality that brokers charge both parties commissions where an exchange is made, and the parties knew of the existence of the custom, the broker could recover from both sides.4

But this is in reality saying nothing more than that if both parties knew that the broker was to receive pay from both, he is not precluded from recovering.5

Add to footnote 6 (p. 51) :

Welch v. Garrett. 186 111. App. 191 (1914); Hoffhines v. Thorson, 92 Kan. 605; 141 Pac. 253 (1914); Jacobs v. Beyer, 141 App. Div. 49: 125 N. Y. Suppl. 597 (1910). See also Sec. 180.