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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 defendant."

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 Marvland, 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 be come due and payable on written contracts and on accounts after they be come due and demand of payment is made."

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, 40 L. Ed. 738.

We therefore find the court below erred in not allowing to the bridge company interest upon its judgment of $38,406.43 from September 12, 1904, the date of the institution of the suit, and for this reason only the cause upon the writ of error of the plaintiff bridge company is reversed and remanded, with costs against defendant railroad company. And the cause upon the writ of error sued out by the railroad company against the bridge company is in all respects affirmed, with costs to the bridge company.

McLURE v. LUKE.

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

No. 1,415.

1. BROKERS-ACTIONS FOR COMPENSATION EVIDENCE OF PERformance of CON

TRACT.

Defendant entered into a written contract with plaintiff's intestate by which he agreed, in case he should purchase certain mining property at a stated price with the assistance of plaintiff's intestate, to pay the latter a commission. Three days after the death of the decedent a contract was executed by which defendant purchased the property with other property for slightly more than the price named. A witness also testified that on the day before the decedent's death defendant told him of the contemplated purchase, and asked him to ascertain if the decedent would not accept a sum in cash in lieu of an interest in the property which he was to receive under the commission contract. Held, that the contract of sale and such testimony were sufficient, prima facie, to establish that the decedent had performed the service that entitled him to the commission.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, §§ 116, 117.] 2. SAME RIGHT TO COMPENSATION-ACTING FOR BOTH PARTIES.

Where a broker, although acting as agent for both the seller and purchaser of property, is given no discretionary power to negotiate the sale, but his employment is merely to bring the principals together and to keep them informed as to the condition of the property, the dual employment is not inconsistent nor contrary to public policy, and he may receive payment from both principals.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Brokers, § 52.]
Ross, Circuit Judge, dissenting.

In Error to the Circuit Court of the United States for the District

of Montana.

John B. Clayberg, Thos. C. Bach, and Ira T. Wight, for plaintiff

in error.

E. C. Day, M. S. Wilson, and Charles H. Lovell, for defendant in

error.

Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge.

DE HAVEN, District Judge. This is an action at law brought by the plaintiff, as administrator of the estate of Charles S. Gibson, deceased, against L. S. McLure and Charles D. McLure, defendants. The complaint, in addition to other facts necessary to state a cause of action, sets forth that defendants agreed to pay to said Gibson, in the event of the purchase by them, for the sum of $50,000, of the

Broadwater group of mines in the county of Cascade, state of Montana, a commission of $3,000, and 2/100 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:

"Nelhart, 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 Carles S. Gibson in return for above assistance a 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 agree ment 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

*

erty mentioned in this contract was purchased by the defendant for the price named therein-$50,000; and, second, that Gibson assisted him in making the purchase. For the purpose of showing these facts, the plaintiff introduced in evidence a written contract entered into between the owner of the Broadwater group of mines and the defendant L. S. McLure and Charles D. McLure, on April 17, 1900, by the terms of which the vendor was to sell and the defendants purchase the Broadwater group of mines; also all ores on the dumps, all tools, machinery, and implements of every kind and nature, used in and about said mines, for the sum of $50,600. The contract further provided that, "in addition to the Broadwater group above mentioned, and as part of the property hereby agreed to be conveyed," the vendor "agrees to sell and convey by quitclaim deed all his right, title and interest in and to the tunnel site on the Enterprise No. 2, claim, and also all and singular the certain quartz lode claim, known and described as the Key." The evidence shows that Gibson died on the 14th of April, 1900, three days before the execution of the agreement just referred to, and one witness testified that on the day before his death the defendant informed him of the contemplated purchase of the Broadwater group of mines, and of the contract which he had made with Gibson, and requested him to see the latter and ascertain if he would accept $3,000 cash in lieu of stock in the company that was to be formed. The proposition was not made to Gibson, as he died before the witness had an opportunity to see him. This is all of the evidence tending to show performance of the contract sued on, on the part of Gibson, and was, we think, sufficient for that purpose in the absence of evidence to the contrary, and there is no such evidence. The proposition which the defendant authorized the witness referred to, to make to Gibson, was in substance one for a modification of the contract under which he was employed, and the offer so made shows that the defendant then recognized the right of Gibson to the commission stipulated for in his contract, and was in effect an implied admission by him that he had performed the service entitling him to the compensation provided for in that contract, and was therefore some evidence of that fact against the defendant making the admission. The agreement of April 17, 1900, by which the Broadwater group of mines and the other property therein described was purchased for $50,600, is not of itself sufficient to prove that the price paid for the Broadwater group of mines exceeded $50,000, as other property was included in that agreement. In the absence of evidence to the effect that the other property therein described was purchased for less than $600, this agreement did not tend in any degree to weaken the force of the defendant's implied admission that the contract by which Gibson was employed had been fully performed

by him.

It is argued, however, by counsel for the defendant, that the proposition to pay money in lieu of certificates of stock may have been intended to settle or compromise a disputed claim; but there is nothing in the evidence upon which to base such a supposition, as it contains no intimation that there was any dispute between defendant and Gib

son as to the right of the latter to receive the compensation provided for in the contract sued on.

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 plaintiff, because it appears from the pleadings that the deceased Gibson was acting for both the vendor and vendee in the matter of the sale of the Broadwater group of mines, and there was no evidence showing that the parties to that transaction knew that he was acting in such dual capacity. The principle for which the defendant contends is that it is prima facie contrary to public policy for a broker to 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 entitled to recover compensation from either of his principals, without proof that both of them knew of the dual capacity in which he acted, and consented thereto. This may be regarded as the statement of an elementary rule of law, and is supported by numerous authorities, among which the following may be cited: Meyer v. Hanchett, 43 Wis. 246; Scribner v. Collar, 40 Mich. 375, 29 Am. Rep. 541; Leathers v. Canfield, 45 L. R. A. 33, 117 Mich. 277, 75 N. W. 612; Hobart v. Sherburne, 66 Minn. 171, 68 N. W. 841; Young v. Trainor, 42 N. E. 139, 158 Ill. 428; Hannan v. Prentis, 124 Mich. 417, 83 N. W. 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 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 inconsistent with that which he owes to the other. The rule is based 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. to buy it for the lowest." Farnsworth v. Hemmer, 1 Allen (Mass.) 494, 79 Am. Dec. 756. When the fact of such inconsistent relation is either admitted or proved, the burden is then upon the agent to show that both principals had knowledge and consented to his acting in such dual capacity, and without such proof he is not entitled to recover compensation from either; but where the agency is not of this nature, where the agent is given no discretionary power to negotiate the sale, and his employment is merely to bring the principals together that they may make their own contract upon such terms as they may agree, the reason for the rule above stated ceases, and the agent is entitled to recover from both principals, if both have agreed to pay him for such services. Rupp v. Sampson, 16 Gray (Mass.) 401, 77 Am. Dec. 416; Knauss v. Brewing Co., 142 N. Y. 70, 36 N. E. 867; Empire State Ins. Co. v. American Cen. Ins. Co., 34 N. E. 201, 138 N. Y. 446.

The question then is, to which of these classes does the present case belong? There is nothing in the evidence to throw any light upon this question, as it does not disclose the scope of Gibson's agency, what assistance he was to render the defendant in making the purchase of the Broadwater group of mines, or what service he was to perform for the owner of the property sold. It is, however, admitted by the pleadings, that Gibson was to receive compensation from both parties to that transaction, and defendant claims that, such fact being admitted, the burden

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