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name of the real party in interest. This theory being accepted by the trial judge plaintiff recovered. Defendants by appropriate objections, motions for a directed verdict, and requests to charge assert various reasons in denial of their liability. We shall not consider all the grounds urged but will consider sufficient of them to dispose of the case.
It is the claim of the defendants that when the written contract was executed they were not, nor was either of them, under any legal obligation to pay the plaintiff any sum, that they owed him nothing, and if the contract is to be construed as claimed by plaintiff it must fail as to these defendants for want of consideration. It is their further claim that the language of the contract above quoted should be construed that each of the contracting parties agreed to pay their respective broker the regular commission on their respective properties, and that it should not be construed to require the defendants to pay the broker of the other party, or to pay the brokers jointly any sum beyond that which they and their broker had agreed upon; in other words, that each of the parties should pay his own broker. The proofs conclusively establish that La Bounty has paid plaintiff his commission as broker for handling the deal for him. The proofs also conclusively establish that when defendants listed the apartment house with Claxton it was listed for sale at $70,000, and that Claxton's commission at three per cent. would amount to $2,100; that he agreed to and did accept $2,050 in settlement of the commission, $600 of which amount he gave to plaintiff.
The plaintiff, Mr. Lister, was not a middleman in this transaction. He was a broker in the employ of Mr. La Bounty. He is not seeking here to recover a commission from his principal, his employer. He has been paid in full by his principal. He is seeking here to recover a commission from the party with whom his principal dealt. When plaintiff accepted employment from Mr. La Bounty as his broker the relations of principal and agent were established. Plaintiff's duty was to his principal. Such services as he performed in negotiating and putting through the deal were performed for his employer and they were performed for no one else. That he performed more services, worked harder, devoted more time to the transaction than did defendants' broker, Mr. Claxton, might appeal as it did to Mr. Claxton, but it created no legal liability on the part of defendants. Mr. La Bounty had employed him to perform these services, defendants had not. The services were performed for Mr. La Bounty, not for the defendants. When plaintiff accepted employment as Mr. La Bounty's broker he was bound to act for Mr. La Bounty alone, using his utmost good faith in his behalf. 4 R. C. L. p. 270; and public policy does not encourage the collection of commissions by a broker from the party with whom his principal deals. Leathers v. Canfield, 117 Mich. 277 (45 L. R. A. 33); Pinch v. Morford, 142 Mich. 63. Neither the law nor good morals required the defendants to pay to the plaintiff or to any one except their broker, Claxton, any commission for putting through the deal.
When the parties had concluded their negotiations and met to put their engagements in writing these defendants owed the plaintiff nothing. There was no liability on their part to him. If, therefore, we accept the theory advanced by plaintiff's counsel and accepted by the trial judge, that the provision of the contract above quoted was a promise on the part of defendants to pay a commission to plaintiff or to any one but defendants' broker, Mr. Claxton, such promise was without consideration and no recovery can be had upon it.
But we are not persuaded when we take into consideration the surrounding circumstances that the parties intended by this clause of their agreement to obligate themselves beyond the payment to their own broker of his commission. As we have already stated, when defendants listed this property with Mr. Claxton it was listed at $70,000. He does not seem to have sought to take advantage of the fact that in the trade it was put in at $100,000. His failure to exact a commission on the latter figure does not inure to the benefit of plaintiff. Under the statute of frauds (3 Comp. Laws 1915, $ 11981) an agreement to pay commission on the sale of real estate must be in writing. We do not consider the question of whether this agreement complies with the statute, but we entertain no doubt in light of all the surrounding circumstances that the insertion of this clause in the contract was for the purpose of making written evidence of the agreement of the parties with their respective brokers to pay to them each of them their commission on the respective properties.
The judgment of the circuit court is reversed, but with no new trial.
BIRD, C. J., and MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred with FELLOWS, J.
OSTRANDER, J. I agree that a proper construction of the contract denies plaintiff's contention, and upon this point concur in reversing the judgment.
BELAND V. CIGARMAKERS' INTERNATIONAL UNION OF
INSURANCE – MUTUAL BENEFIT ASSOCIATIONS DESIGNATION
all of her estate of which she might die seized, or which
Case-made from Wayne; Davis, J., presiding. Submitted April 22, 1919. (Docket No. 73.) Decided May 29, 1919.
Assumpsit by Peter Beland against the Cigarmakers' International Union of America for the amount of a benefit certificate. Judgment for plaintiff.
Defendant appeals. Affirmed.
A. P. Entenza, for appellant.
Charles C. Stewart and William C. Gottman, for appellee.
FELLOWS, J. The material facts in this case are substantially identical with those in Smith v. International Union, 203 Mich. 249. The defendant here was defendant there and the provisions of its constitution here involved will be found in the opinion in that case together with its claim which is substantially
same in both cases. In the instant case plaintiff's wife became a member of defendant in 1889 and was in good standing at the time of her death. She died on April 18, 1918, without having made a written
On right to designate by will the beneficiary of benefit insurance, see note in 42 L. R. A. (N. S.) 1161.
designation of beneficiary except by her will, which was as follows:
"I give, devise and bequeath to my husband, Peter Beland, any and all estate of which I may die seized, or which I may be entitled to at the time of my decease.”
Here, as in that case, the plaintiff was the sole heir of decedent and there was no purpose in making the will, which was executed shortly before decedent's death, except to confer on plaintiff the death benefit; as was there said:
"This will was purposeless and could accomplish nothing in respect to deceased's evident desire to leave his daughter everything he owned or had a right in relation to, except as it served to confer on her his death benefit."
In that case this court concluded that:
"Under the unquestioned facts and circumstances of this case and the provisions of deceased's contract with defendant authorizing him in general terms to appoint his beneficiary by will, and it not appearing that he had appointed any other beneficiary, we are satisfied that he intended to and did exercise that right within the meaning of their agreement as fairly interpreted, and by this will has designated plaintiff as such beneficiary."
The instant case is controlled by that case and it would be superfluous to enlarge upon or repeat what was there fully considered.
The judgment is affirmed.
BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, STONE, and KUHN, JJ., concurred.