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distinctly left by the contract to the arbitrament of the engineers, or distinctly within the scope of such engineers' duty or authority, we must put them aside as not being in point; for here the matter of fixing the rate of exchange or ratifying any arbitrary or other rate was wholly outside of the scope of the engineers' authority or power, because against the very terms of the contract between the principals which had fixed it, and could not be changed except in writing by the principals themselves.

The trial court ascertained: “That the sum paid in Mexico in settlement with American employés was in Mexican currency $686,481.37. To reimburse this sum the plaintiffs obtained from the defendant gold drafts amounting to $343,240.68. These gold drafts they converted into Mexican currency at a rate of at least $2.20, and received therefor at least $775,129.49 Mexican, making a gain over the $686,481.37 of $68,648.12 Mexican. This sum converted into gold at $2.20 is a gain of $31,203.69, and for this sum the plaintiffs should account to the de fendant."

-2. 1904

"V interest upon its in

e upon the writ of er Tersed and remanded, with co --. And the cause upon the w - Ery against the bridge com

to the bridge company.

· McLU (Circuit Court of Appe

S

We think this holding right under the terms of the contract and the conditions and circumstances existing touching these transactions, and therefore hold the bridge company's assignment of error in this particular to be unavailing.

This brings us to the last objection made by the bridge company touching the disallowance of interest. While it is true this cause was trial in Maryland, where by statute the allowance of interest is left to the discretion of the court, yet it is also true that this contract was a Missouri one. The statute of this latter state (section 3705, c. 40, Rev. St. Mo. 1899 (Ann. St. 1906, p. 2073]), provides :

"Creditors shall be allowed to receive interest at the rate of six per centum per annum when no other rate is agreed upon for all moneys after they become due and payable on written contracts and on accounts after they be come due and demand of payment is made."

TERS ACTIONS FOR COMP PT.

Virpdant entered into 7 t he agreed, in case

price with the ass

mission. Three da o ate by which defer

slightly more than be dis before the decea -n ase. and asked hi

1 1 cash in lieu of D er the commission

inn y were suffici ored the service Fa. Note-For cas CE-RIGHT TO COMT bere a broker, &

I of property. GL bis employment an ipfomed as

I t inconsistent DOC from both pr

Ed. Note.—For PES, Circuit J

The Supreme Court of Missouri in construing this statute has held that such interest will not be allowed on account until after demand is made. Evans v. Western Brass Mfg. Co., 118 Mo. 548, 24 S. W. 175; Southgate v. A. & P. R. R. Co., 61 Mo. 89. But it has further held that the institution of suit constitutes such demand, and in case no prior demand has been proven, then interest should be awarded from the date of service of process, or, in the absence of proof of date of service, from the commencement of the suit. Dempsey v. Schawacker, 140 Mo. 680, 38 S. W. 954, 41 S. W. 1100. The controversy arose in Maryland only by reason of the accidental location of the attached funds there of the railroad company. By the finding of the trial court, an aggregate of $38,406.43 remained unpaid, and suit to recover it had been instituted on September 12, 1904, nearly 17 months before judgment rendered. We think the bridge company clearly was entitled to interest for this period, both under the Missouri statute and the federal authorities. Curtis v. Innerarity, 6 How. 146-154, 12.L. Ed. 380; Sturm v. Boker, 150 U. S. 312–341, 14 Sup. Ct. 99, 37 L. Ed. 1093; Crescent Mining Co. v. Wasatch M. Co., 151 U. S. 317-323, 14 Sup. Ct. 348, 38 L. Ed. 177; Spalding v. Mason, 161 U. S. 375–385, 16 Sup. Ct. 592, 10 L. Ed. 738. ,

ETTOT to the Itatana 1302 B. Clayt

C. Dar, 5. Leiare

- EVET

ore find the court below erred in not allowing to the ny interest upon its judgment of $38,406.43 from Septemthe date of the institution of the suit, and for this reason e upon the writ of error of the plaintiff bridge company id remanded, with costs against defendant railroad comne cause upon the writ of error sued out by the railroad nst the bridge company is in all respects affirmed, with idge company.

McLURE v. LUKE.

uit Court of Appeals, Ninth Circuit. June 3, 1907.)

No. 1,415. IONS FOR COMPENSATION-EVIDENCE OF PERFORMANCE OF CON

entered into a written contract with plaintiff's intestate by 'eed, in case he should purchase certain mining property at a with the assistance of plaintiff's intestate, to pay the latter . Three days after the death of the decedent a contract was vhich defendant purchased the property with other property more than the price named. A witness also testified that on

the decedent's death defendant told him of the contemplated . asked him to ascertain if the decedent would not accept a i lieu of an interest in the property which he was to receive mmission contract. Held, that the contract of sale and such e sufficient, prima facie, to establish that the decedent had service that entitled him to the commission. For cases in point, see Cent. Dig. vol. 8, Brokers, 88 116, 117.)

COMPENSATION-ACTING FOR BOTH PARTIES. ker, although acting as agent for both the seller and purerty, is given no discretionary power to negotiate the sale, nent is merely to bring the principals together and to keep as to the condition of the property, the dual employment ent nor contrary to public policy, and he may receive pay

principals. or cases in point, see Cent. Dig. vol. 8, Brokers, $ 52.) Judge, dissenting. Circuit Court of the United States for the District

g, Thos. C. Bach, and Ira T. Wight, for plaintiff . Wilson, and Charles H. Lovell, for defendant in

T and ROSS, Circuit Judges, and DE HAVEN,

strict Judge. This is an action at law brought administrator of the estate of Charles S. Gibson,

S. McLure and Charles D. McLure, defendants. ddition to other facts necessary to state a cause that defendants agreed to pay to said Gibson, in chase by them, for the sum of $50,000, of the

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M therein-$50,000;

the purchase. For intii

CII Otroduced in evidence a t e omaer of the Broadwate

S. McLure and Charles D. ci which the vendor was t roadwater group of mines;

zery, and implements of e - aid m ines, for the sum o*

that, “in addition to the + 25 part of the property here

to sell and convey by ze in and to the tunne = * and also all and

- and described as the ra the 1 4th of April, 15 Stett just referred to. - his death the defe mase of the Broadwate - made with Gibson - if he would acce-cha: was to be forme e died before the w

of the evidence t ..on, on the part of -se in the absence -- evidence. The p -ass referred to, to

Ecation of the

-ies so made sho o bson to the com

- an implied a -ice entitling him

ani was theref --aking the ad Ech the Broadwa --tec was puro

the price paio .. as other pe mr of evidenc

Fichased se to Wea

Broadwater group of mines in the county of Cascade, state of Montana, a commission of $3,000, and o/100 interest in the property purchased, in return for his assistance in making such purchase, payment to be made at the time of the delivery of the deed of the property; that the property was purchased by the defendants for the price named, and the contract was fully performed upon the part of Gibson; that 2/100 of the property purchased is of the value of $2,000, and judgment is demanded for the sum of $5,000. The evidence disclosed that the defendant Charles D. McLure was not a party to the contract referred to in the complaint, and the action was dismissed as to him. At the close of plaintiff's testimony, the remaining defendant, L. S. McLure, requested the court to instruct the jury to return a verdict for him. This request was refused, and, the defendant declining to introduce any evidence, the court instructed the jury to find for the plaintiff for the full amount sued for. The case is brought here by the defendant L. S. McLure on writ of error. There are various errors assigned, only one of which requires discussion, and that is the one which relates to the action of the court in instructing the jury to return a verdict in favor of the plaintiff.

1. In' the consideration of the question presented for decision, it is necessary briefly to refer to the evidence, and to the issues made by the pleadings. The evidence shows that the defendant entered into the following contract with the deceased Gibson, in behalf of whose estate this action was brought:

"Neihart, Dec. 1, 1899. "Should I purchase the Broadwater group of mines and other property for the sum of fifty thousand dollars (and Charles S. Gibson assisting me in the making of said purchase) then in that event I agree to pay to the said (" arles S. Gibson in return for above assistance à commission of three thousand dollars at the time of delivery of deed of above property to me.

“I also agree to give him two one-hundredths (2/100) interest in the prop erty in lieu thereof in the event of the incorporation of a company by me on the said property, to give him 2/100 two one-hundredths-of the capital stock of said company at the time of its incorporation in lieu of the said two one-hundredths interest in the property. Said stock to be non-assessable stock.

"The above agreement to be void if I do not purchase the property at the price above stated.

L. S. McLure." This agreement was set out in hæc verba in the defendant's answer, as the contract between himself and Gibson, and it was not alleged that it was intended by the parties thereto to include in such contract other property than the Broadwater group of mines; nor was it suggested at the trial that there was in the minds of the parties to the agreement any other property than that therein specifically mentioned, to wit, the Broadwater group of mines. This being so, the words “and other property,” in the clause of the agreement describing the property to be purchased as "the Broadwater group of mines and other property," are to be regarded as surplusage, and the agreement construed as only applying to the Broadwater group of mines. Was the evidence sufficient to show that the contract as thus construed was performed by Gibson ?

We agree with the contention of the defendant that under the pleadings it was incumbent upon the plaintiff to prove, first, that the prop

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ned in this contract was purchased by the defendant for imed therein—$50,000; and, second, that Gibson assisted ng the purchase. For the purpose of showing these facts, introduced in evidence a written contract entered into bewner of the Broadwater group of mines and the defendcLure and Charles D. McLure, on April 17, 1900, by the hich the vendor was to sell and the defendants purchase ter group of mines; also all ores on the dumps, all tools, and implements of every kind and nature, used in and nines, for the sum of $50,600. The contract further pro‘in addition to the Broadwater group above mentioned, of the property hereby agreed to be conveyed,” the vendor ell and convey by quitclaim deed all his right, title and nd to the tunnel site on the Enterprise No. 2, claim, 1 also all and singular the certain quartz lode claim, escribed as the Key." The evidence shows that Gibson 1th of April, 1900, three days before the execution of the st referred to, and one witness testified that on the day ath the defendant informed him of the contemplated he Broadwater group of mines, and of the contract which with Gibson, and requested him to see the latter and aswould accept $3,000 cash in lieu of stock in the comto be formed. The proposition was not made to Gibson, fore the witness had an opportunity to see him. This evidence tending to show performance of the contract ne part of Gibson, and was, we think, sufficient for that e absence of evidence to the contrary, and there is no

The proposition which the defendant authorized the ed to, to make to Gibson, was in substance one for a of the contract under which he was employed, and ade shows that the defendant then recognized the right he commission stipulated for in his contract, and was in lied admission by him that he had performed the g him to the compensation provided for in that contherefore some evidence of that fact against the defendne admission. The agreement of April 17, 1900, by adwater group of mines and the other property therein purchased for $50,600, is not of itself sufficient to prove

aid for the Broadwater group of mines exceeded $50,property was included in that agreement. In the abce to the effect that the other property therein described for less than $600, this agreement did not tend in any en the force of the defendant's implied admission that which Gibson was employed had been fully performed

however, by counsel for the defendant, that the propooney in lieu of certificates of stock may have been inor compromise a disputed claim; but there is nothing upon which to base such a supposition, as it contains at there was any dispute between defendant and Gib

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izoof was upon

son as to the right of the latter to receive the compensation provided

zetted to such for in the contract sued on.

e defense to the 2. It is further contended by defendant, and this seems to be his main contention, that the court erred in directing a verdict for the Ohe owner of

- deiendant, for plaintiff, because it appears from the pleadings that the deceased Gibson was acting for both the vendor and vendee in the matter of the ze tereof, and th sale of the Broadwater group of mines, and there was no evidence - in such dual showing that the parties to that transaction knew that he was acting * Gibson was to in such dual capacity. The principle for which the defendant con

Fader of the Br tends is that it is prima facie contrary to public policy for a broker to Sist should beco act as agent for both vendor and vendee in a sale of property, and that, when such double employment is shown, the agent is not en Tat is the effecti

- as agent in bri titled to recover compensation from either of his principals, without

La as to the com proof that both of them knew of the dual capacity in which he acted,

to do with the fix and consented thereto. This may be regarded as the statement of an

Ceteranining as elementary rule of law, and is supported by numerous authorities,

nation so mac among which the following may be cited: Meyer v. Hanchett, 43

will be seen fr Wis. 246; Scribner v. Collar, 40 Mich. 375, 29 Am. Rep. 541; Leath

ce's agency wa ers v. Canfield, 15 L. R. A. 33, 117 Mich. 277,75 N. W. 612; Hobart V. Sherburne, 66 Minn. 171, 68 N. W. 841; Young v. Trainor, 4? Cinegotiating a N. E. 139, 158 I11. 128; Hannan v. Prentis, 124 Mich. 117, 83 N. W. - tpon him any

Tan, and kee 102; 19 Cyc. p. 279. It will be found upon examination that this principle of law is only applied in cases where the agent is clothed

e property.”

en we think t with some discretion in the matter of advising or negotiating the sale or purchase of property, where the duty which he owes to one principal is

Res. to offer so inconsistent with that which he owes to the other. The rule is based se: in relation

jerice tending upon the doctrine that "the duty of an agent for a vendor is to sell the property at the highest price; and of the agent of the purchaser.

SD with some

Broadwater gro to buy it for the lowest." Farnsworth v. Hemmer, 1 Allen (Mass.) 494. 19 Am. Dec. 756. When the fact of such inconsistent relation

Ise and the ca is either admitted or proved, the burden is then upon the agent to

ons Co., 142 show that both principals had knowledge and consented to his acting

* Unleniable th:

Son, or where t in such dual capacity, and without such proof he is not entitled to re

= of his skill 01 cover compensation from either; but where the agency is not of this

- by the other si nature, where the agent is given no discretionary power to negotiate

is duty and his i the sale, and his employment is merely to bring the principals together

The whole that they may make their own contract upon such terms as they may

If 1. is emplo,

aud conditions agree, the reason for the rule above stated ceases, and the agent is

see nothing imp entitled to recover from both principals, if both have agreed to pay

zept an employm him for such services. Rupp v. Sampson, 16 Gray (Mass.) 401, 77

a tos which they Am. Dec. 416: Knauss v. Brewing Co., 142 N. Y. 70, 36 N. E. 867;

Eduty, in such Empire State Ins. Co. v. American Cen. Ins. Co., 34 N. E. 201, 138 zein being struck

Tue other."
N. Y. 446.
The question then is, to which of these classes does the present case

The fact admitted belong? There is nothing in the evidence to throw any light upon

Karat as a midd this question, as it does not disclose the scope of Gibson's agency, what

Tse information a assistance he was to render the defendant in making the purchase of the

question before i Broadwater group of mines, or what service he was to perform for the

degloyment impo: owner of the property sold. It is, however, admitted by the pleadings,

i the conflicting that Gibson was to receive compensation from both parties to that trans

is no presumi action, and defendant claims that, such fact being admitted, the burden

racipals to deceive

.

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