On Petition for a Rehearing.
Bruce, Ch. J.A petition for a rehearing has been filed, in which it is urged that the opinion in chief reversed the judgment of the trial court on the alleged insufficiency of the evidence to sustain the verdict, and that this question was not before the supreme court, and should not have been considered. It is claimed that no motion below was made for a directed verdict, and that the motion for a new trial made in the court below was accompanied by certain specifications of error, and that said specifications nowhere specified wherein the evidence was insufficient, as required by § 1656 of the Compiled Laws of 1913, and the cases of Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N. D. 366, 155 N. W. 861; Buchanan v. Occident Elevator Co. 33 N. D. 346, 157 N. W. 122; Updegraff v. Tucker, 24 N. D. 171, 139 N. W. 366; Gagnier v. Fargo, 12 N. D. 219, 96 N. W. 841, and 11 N. D. 73, 95 Am. St. Rep. 105, 88 N. W. 1030, 11 Am. Neg. Rep. 336; and Flora v. Mathwig, 19 N. D. 4, 121 N. W. 63.
There is no merit, however, in these objections. The specifications of error which were made at the time of the motion for the new trial contained a specification to the effect that “the court erred in overruling plaintiff’s motion for a directed verdict on the defendant’s counterclaim, made at the close of defendant’s case as follows:
“Comes now the plaintiff and moves the court for a directed verdict on the counterclaim, on the ground and for the reason that the admissions of the defendant, Bowen, conclusively show that he was an agent employed by Mr. Davis, and that by virtue thereof he was never employed by Mr. Jensen, and, if he was, a contract of that kind would *367he void and against public policy and fraudulent, and that he can recover nothing on it.”
The specifications also allege the error of the court:
“In denying plaintiffs motion for a directed verdict on defendant’s counterclaim in his favor, made at the close of the entire case as follows:
“Hr. Jones: ‘At this time, your Honor, we renew the motion heretofore made at the close of the defendant’s case in full force and effect.’ ”
These specifications and these motions were all that was necessary. The errors assigned were errors committed in denying' the motions for a directed verdict, not on the whole case, but on the counterclaim, and in such a' case the counterclaim must be treated as a separate action. It may be that the defendant might have been entitled to have the issues, raised by plaintiffs complaint, submitted to the jury, but under the evidence in the case he was not entitled to have the issues raised by his counterclaim so submitted.
Under the holding in the case of Morris v. Minneapolis, St. P. & S. Ste. M. R. Co. 32 N. D. 366, 155 N. W. 861, where a motion for a directed verdict is made on the ground of the failure of the evidence to support a pleading, a motion for a new trial is not necessary to obtain a review in the supreme court. An erroneous ruling upon a motion for a directed verdict, indeed, is an error of law and is reviewable on an appeal from the judgment.
The petition for a rehearing is denied.
*352Note. — The general rule is that a real estate broker employed to sell, purchase, ■or exchange property for a specified commission, who, in effecting the transaction, also received a commission from the other party, without disclosing that fact to his principal, is not entitled to recover commissions from his principal, especially where it is evident that reliance was placed upon his judgment and skill; but where a party employs him, with knowledge that he is also acting for the other party, he is entitled to his commissions from the first-named party, or he may recover commissions from both parties where he is employed merely to bring them together, they to make their own bargain, thus giving him no discretion or confronting him with a conflict of duties, but making him a mere middleman. The case of Jensen v. Bowen comes within the last exception, as will be seen by an examination of the ■cases in 45 L.R.A. 44, and 24 L.R.A.(N.S.) 659.
As to when real estate broker may recover compensation from both parties, see notes in 34 Am. St. Rep. 323, and 60 Am. Dec. 370.