¶1(dissenting). The plaintiff had submitted to defendant various parcels, and defendant was not interested in any of them, and plaintiff finally discontinued his efforts to interest defendant. Later the parties met accidentally, and defendant asked plaintiff if plaintiff had any properties to submit. Assuming as we must, the truth of plaintiff’s story, plaintiff said to defendant: “I gave you so many good properties at reasonable prices, and you did not buy any of them, and I have been bothering with you for over two months; what is the use -of bothering with you. * " * If I bring you some good property you can buy yourself through other brokers and I don’t get commission,” and defendant replied; “If you bring me some good property I like I will buy it quick through you, and you get the commission. Even if I buy the property through other brokers and you do not get the commission from the owner,— from the other side,—I will pay you from my own pocket the commission.” Plaintiff subsequently submitted the property involved in this action, the owner and proposed seller being either the Krausman Realty Company or the Dixie Security Company. While defend*614ant was considering, the property was sold by plaintiff’s original employer to the Wally Contracting Company. Plaintiff had been employed by the original seller through a Mr. Posner, who knew that defendant was plaintiff’s prospective customer. Plaintiff procured the authorization of the Wally Contracting Company to represent it to effect a sale, the Wally Company being represented by one Wacht. Plaintiff’s dealings with Wacht show plainly that plaintiff was the seller’s broker. Wacht gave plaintiff an asking-price of $142,000, revealing- to him, however, that the deal could be closed at $138,000. There is no evidence that plaintiff told Wacht he was an employee of the buyer, and, on the other hand, there is evidence that Wacht did not even know the name of the buyer, but knew merely that plaintiff had a possible buyer who was a possible buyer when Posner’s company was plaintiff’s employer. Plaintiff went to defendant and, in violation' of the duty he owed the seller of endeavoring- to procure the highest price possible, never mentioned to defendant the asking price of $142,000, but told defendant that the owner wanted $138,000, and then immediately, and without any solicitation on the part of defendant, he told defendant that it was his opinion that the property could be bought for even less than $138,000.
¶2My learned brethren hold the view that no skill was required of plaintiff by either the owner or the defendant, and that no discretion was vested in him. I am of the opinion that it very plainly appears that his skill was relied upon, and that he was given a very large measure of discretion. He had procured from Wacht maximum and minimum prices that were $4,000 apart. His duty to the owner was1 to obtain the best price procurable between $138,000 and $142,000. Such skill as he possessed should have been employed in *615inducing the buyer to accept the largest figure within the limits of the discretion given him. Plaintiff’s judgment should have been employed in determining how high the buyer would go. He betrayed the trust reposed in him by Wacht by making not the slightest effort to obtain a higher price than the minimum figure that had been named to him. Thus, he deliberately refused to put to use such skill and judgment as he possessed in a situation calling for the exercise of both. The actual holdings in the Empire State Ins. Co. and Knauss cases, cited by Mr. Justice Bijur, are not in point, nor do the dicta in the opinions in those cases exclude the requirement of good faith. If a broker is employed, in a given case, as a mere introducer, of course his duties are limited to the introduction. Otherwise, a broker is bound, as is any other employee, to the utmost of good faith in the interest of his employer. Here, he was at least false to the seller. This, I think, is plainly the case referred to in the Knauss opinion, “ where by possibility his (the broker’s) duty and his interest might clash.” In his anxiety to procure a commission, the plaintiff gave to the defendant the benefit of an offer at a sum considerably less than the defendant may have been willing to pay. I think the situation calls for the application of the rule that has been tersely stated as follows: “It is unlawful for him (the broker) to attempt to act in the capacity of broker for both sides to a negotiation without the knowledge and consent of each of them, and in the event of his so doing he is not entitled to be compensated by either. … if the knowledge and consent of but one is obtained and the other is kept in ignorance of the dual employment there can be no recovery, not even as against the one assenting.” 4 R. C. L. 328, ¶ 64, and cases cited; Leathers v. Canfield, 45 L. R. A. 33, and note. It seems to me to be of no *616materiality that the agreement sued upon here contains no express term that plaintiff should not reveal to the seller the dual capacity in which he was acting. The question is whether he in fact acted in that dual capacity with the full knowledge of both parties of all the facts. That he did not disclose to the seller his agreement with the defendant is beyond doubt.
¶3I am of the opinion that it amply appeared, out of plaintiff’s own mouth, (1) that skill and judgment were required of him, (2) that he failed to employ such skill and judgment, and (3) that he acted in bad faith toward the seller, one of his employers. I vote, accordingly, for affirmance.
¶4Judgment reversed and new trial granted, with costs to appellant to abide event.