Gregory v. Kennedy Bros.

109 P. 400, 82 Kan. 565, 1910 Kan. LEXIS 307

• Court: Supreme Court of Kansas
• Decided: June 11, 1910
• Docket: No. 16,429
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

From the findings it appears that Kennedy Brothers had nothing to do with inducing the purcháser to go and see the land, and there is no finding that anything they did induced him to take it. Without their efforts he would have purchased. All they did was to close the sale, which would have been done by the plaintiff if they had riot by misrepresentations, both to the owner and the purchaser, prevented the plaintiff from closing it. They knew the purchaser was the plaintiff’s customer, but in their telephone talk with the owner, when he asked them if the customer was Gregory’s man, they said he was not. The owner seems to have had some information about Gregory’s man, and the inference is that they were not very far apart when the defendants interfered.

In Beougher v. Clark, 81 Kan. 250, a case somewhat like this in its facts, it was held that where property is placed in the hands of several brokers the owner is bound to pay that one who is the primary, proximate and procuring cause of the sale, notwithstanding the sale is consummated by another broker on different terms. Here the proximate, predominating and procuring cause of the sale was the plaintiff, and upon the findings he was entitled to judgment. (Votaw v. McKeever, 76 Kan. 870; Beougher v. Clark, supra; 19 Cyc. 260.)

The seller has paid the money into court and departed. He no longer has any interest in the controversy between the agents as to which of them has the better right to the commission. In such a case it would seem.that no arbitrary rules of law respecting the liability of a principal to his agent should be permitted to defeat plain justice.

The judgment is reversed and the cause remanded, with directions to enter judgment for the plaintiff.