A jury has found on the questions of fact in favor of the plaintiff. The learned trial judge has rendered judgment on the verdict. I would uphold that judgment. The parties dealing in this case (officers of The Consolidation Coal Company and Paisley) are men of large affairs. They reserved unto themselves all rights to fix terms, bestowing no power on Shaver, except that of bringing the parties together. While the law will not permit a party to act in a dual capacity of agent for principals having divergent interests, on the theory that he cannot possibly act impartially, yet it recognizes an exception in cases where the so-called agent simply brings the principals together, and the latter in turn make their own terms. In order to support such exception the intermediary must of necessity have a right to ascertain and present the proposition of one principal to the other and vice versa.
None of the facts set out in the Court's opinion, according to my view, in the light of the contract with Shaver, tend to establish dual agency. The ground of complaint of the defendant would have stood on a very different basis had Shaver been employed to option or sell the coal lands in question. In such case it would have been a fraud for him to conceal his agency for one from the other. This is on the principle that the interests of the buyer and seller are naturally adverse. But the plaintiff here did not act in any such capacity. He was not an agent to buy or sell the lands but acted only *Page 389 as a middleman to bring the parties together that they might make their own contracts. This position finds abundant sanction in our decisions. McDermott v. Gas Co., 88 W. Va. 692; Runnion v. Morrison, 71 W. Va. 254.
On the record the jury might well have found that there was nothing in the conduct of the plaintiff which operated to deceive the representatives of the defendant company in making the agreement to pay him for his services; that he made no false representations to them; and that they knew the nature of his services and the value thereof, and the extent that such were beneficial to the defendant. It is wholly immaterial under these circumstances that Shaver was to receive compensation from Paisley. It might be well found that Shaver's services were of value to both parties, and that each might be willing to pay according to the benefit received.
The plaintiff, under the facts in this case, held no relation with the parties so as to render his actions adverse to the interests of the other party. But, however, assuming that there was sufficient evidence to go to the jury on the theory of dual agency, this distinction was taken at the trial and accurately stated in instruction No. 10, given for the defendant company. It reads: "If you believe from the evidence that while the plaintiff was negotiating the lease to James A. Paisley as agent for the defendant said plaintiff was also acting as agent for hire for said James A. Paisley in the same transaction and that the plaintiff did not disclose the fact of his agency for Paisley to the defendant and that the defendant did not learn of such agency until after the 25th day of September, 1927, and if you further believe that in the negotiation of said lease the interests of The Consolidation Coal Company and said James A. Paisley were divergent and opposite and if you believe that The Consolidation Coal Company was entitled to have the entire benefit of the judgment, discretion and personal influence of said Clement L. Shaver, then and in any such event the defendant is entitled to recover in this case from the plaintiff the sums of money heretofore paid by the defendant to the plaintiff as *Page 390 commission in ignorance of such dual agency and your verdict should be for the defendant in the amount of such commissions so received by the plaintiff, that is to say, the sum of $50,319.90."
The foregoing instruction when read in conjunction with Nos. 1 and 2, given for the plaintiff, accurately presented the theories of each litigant to the jury. In the plaintiff's instruction No. 2 the services rendered by the plaintiff were depicted as those of a middleman. The quoted instruction deals with those elements which would make plaintiff more than a middleman. It is a trite rule in this jurisdiction that instructions are to be regarded as a unit and the omissions of one may be supplied by the contents of another. Equally true is it that each instruction need not cover all the issues and state all the law relating to the controversy. Very much the same situation as to instructions was dealt with inRunnion v. Morrison, supra. There the Court said: "But we observe, the court did in fact, instruct the jury in four other instructions, * * * as to the manner in which an agent, or broker, acting for both buyer and seller, might deprive himself of his rights to compensation. So that, reading all the instructions together, we do not think there could have been any doubt or confusion in the minds of the jury concerning the law of the case." When this is done in the instant case, the fact that plaintiff's instruction No. 1 may have ignored the affirmative defense of the defendants and No. 2 may have fallen short of defining duties of a middleman is not error for which the case should be reversed. The case made on this record, as I view it, cannot be better expressed than to use the language of this Court in Peters v. Riley, 73 W. Va. 791: "The evidence does not establish or tend to prove any agency other than that of mere brokerage. The plaintiff was not authorized by the defendant to make a contract of sale for him. All the essential elements of the contract remained in the sole and exclusive control of the defendant. The plaintiff was a mere intermediary, having no power or authority to do more than to find a purchaser and bring the parties together to formulate their own contract *Page 391 and fix its terms and conditions. In such a case, the acceptance of compensation from both parties is unobjectionable."