(dissenting) : The rule that a real-estate agent is entitled to a commission if he is the procuring cause of a sale is not absolutely universal. He may forfeit by misconduct the right he would otherwise have to recover. Here the defendant’s chief contention appears to have been that the plaintiff did not treat him fairly, and by unjustifiably concealing the fact that Kline was his customer, caused the defendant, without fault on his part, to suppose that if he sold to Kline he need pay no commission. I think that if this contention was well founded in fact it constituted a defense, and the evidence made that question one to be determined by the jury. I also think it was material error not to give an instruction concerning this phase of the matter —it being the principal subject of controversy — even although none was formulated by counsel.
Justices Burch and Porter join in this dissent.